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[2015] ZACC 11
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Mbana v Shepstone & Wylie (CCT85/14) [2015] ZACC 11; 2015 (6) BCLR 693 (CC); (2015) 36 ILJ 1805 (CC) (7 May 2015)
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Heads of arguments
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 85/14
In the matter between:
YONELA
MBANA
Applicant
and
SHEPSTONE &
WYLIE
Respondent
Neutral
citation:
Mbana v Shepstone &
Wylie
[2015] ZACC 11
Coram:
Mogoeng
CJ, Cameron J, Froneman J, Jappie AJ, Khampepe J,
Madlanga J, Nkabinde J, Theron AJ and Tshiqi AJ.
Judgment:
The Court
Decided
on:
7 May 2015
Summary:
Section 6
of the
Employment Equity Act 55 of 1998
— unfair
discrimination — race and social origin
Section 11(1)
of the
Employment Equity
Act 55 of 1998
— alleged direct or indirect discrimination on
race and social origin — employer justified conduct
Section 11(2)
of the
Employment Equity
Act 55 of 1998
— alleged unfair discrimination on an arbitrary
ground — complainant did not prove that conduct was not
rational
Actual or perceived bias — in
both instances a litigant must show a reasonable apprehension of bias
— a reasonable apprehension
of bias not established for both
allegations of bias
Appeal against costs orders — no
exceptional circumstances warranting intervention — costs
orders not set aside
ORDER
On appeal from the Labour Court:
1.
The application for leave to appeal is dismissed.
2.
There is no order as to costs.
JUDGMENT
THE COURT
Introduction
[1] This is an application for leave to appeal against
the judgment and order of the Labour Court. It relates to
a
claim of direct or indirect unfair discrimination in the workplace by
the applicant, Ms Yonela Mbana (Ms Mbana), against Shepstone & Wylie
(the respondent), a law firm. The Labour Court dismissed the
claim with costs. Ms Mbana also alleges bias against her
by
Gush J, who presided over the matter in the Labour Court.
Furthermore, she seeks to have the order of the Supreme Court
of
Appeal, dismissing her application for special leave to appeal with
costs, set aside.
Background
[2] The facts are largely common cause. In 2005,
the respondent awarded Ms Mbana, a black woman, a bursary
to
study towards an LLB degree. Upon completion of her LLB degree,
Ms Mbana’s bursary agreement guaranteed her employment
with the
respondent.
[3] In July 2008, Ms Mbana informed the respondent
that she would not complete her degree at the end of 2008 as expected
because she had not passed one of the modules. Instead, she
told the respondent that she needed to repeat the module and
would
only complete her degree in June 2009. She enquired about the
prospects of commencing employment with the respondent
in January
2009 whilst completing her outstanding module.
[4] In response, the respondent, having had regard to
its policy concerning the recruitment of candidate attorneys and
the
bursary agreement, informed Ms Mbana that she could only commence
employment at its Durban head office in January 2010 and
not January
2009.
[5] In March 2009, she again contacted the respondent,
probing whether she could commence employment in July 2009 as
she
would have completed her degree by June 2009. She
indicated a willingness to be employed at any of the other branches
of the respondent, but she soon retracted that as she wanted to
remain in Durban. In any event, the respondent informed Ms
Mbana that in accordance with its policy, she could only commence
employment in January of the following year.
[6] Accordingly, Ms Mbana commenced employment as a
candidate attorney at the respondent’s Durban head office in
January 2010. All seemed well until January 2011, when two
candidate attorneys commenced employment with the respondent.
The first was Ms Janice Tooley (Ms Tooley), a white woman, and the
second was Mr Trevor Mchunu (Mr Mchunu), a black man and a recipient
of a bursary from Unilever.
[7] Ms Mbana soon discovered that Ms Tooley and Mr
Mchunu had not completed their LLB degrees before commencing
employment
with the respondent and she lodged a complaint with the
respondent based on the differential treatment. Meetings were
convened
by the respondent to address the complaint, but these were
unsuccessful.
[8] In May 2011, Ms Mbana
referred a dispute to the Commission for Conciliation, Mediation and
Arbitration (CCMA) for
conciliation, alleging unfair discrimination
based on race and social origin in terms of the Employment Equity
Act
[1]
(EEA). Attempts to resolve the dispute through conciliation,
however, proved futile and a certificate of outcome was issued
to
that effect.
Litigation History
[9] Ms Mbana applied to the Labour Court claiming
unfair discrimination based on race and social origin or,
alternatively,
an arbitrary ground.
[10]
She later sought to amend her statement of claim to refer
to a
further colleague, Ms Barbara van Rooyen (Ms van Rooyen), who had
been employed as a candidate attorney by the respondent
at its
Richards Bay branch in 2005. Ms van Rooyen had similarly not
completed her LLB degree before commencing employment
as a candidate
attorney.
[11]
On 27 November 2012, the Labour Court concluded that the respondent’s
insistence that Ms Mbana commence employment in January 2010, as well
as the continued employment of Ms Tooley, Mr Mchunu and the
circumstances around the employment of Ms van Rooyen did not evidence
direct or indirect unfair discrimination against Ms Mbana
on the
grounds of race and social origin or an arbitrary ground. Even
if the respondent’s deviation from its policy
in relation to
Ms Tooley, Mr Mchunu and Ms van Rooyen constituted
discrimination, the Court noted that the discrimination
was both fair
and justified.
[12]
As a result, it dismissed her application with costs
[2]
and later dismissed her application for leave to appeal to the Labour
Appeal Court.
[13]
Thereafter, Ms Mbana amended her grounds for leave to appeal.
She added that the Judge was actuated by bias or that a reasonable
apprehension of bias existed. The Labour Appeal Court
dismissed
her petition for leave to appeal and the Supreme Court of Appeal
dismissed her application for special leave to
appeal with costs.
In this Court
[14]
Ms Mbana approaches this Court seeking leave to appeal against
the
judgment and order of the Labour Court. She raises two issues.
First, she seeks leave to appeal on the merits of
her
discrimination claim and on the costs orders granted by the Labour
Court and the Supreme Court of Appeal. Second, she
alleges that
there was actual bias or a reasonable apprehension of bias on the
part of the presiding Judge in the Labour Court.
[15]
She claims that the Judge adjudicated her claim without informing
her
of his past association with the respondent and that this association
gives rise to a reasonable apprehension of bias.
Additionally,
based on certain utterances and conduct displayed by the Judge during
the trial, she avers that there was indeed
actual bias. As a
result, Ms Mbana urges that the Labour Court judgment and order
should be set aside.
[16]
This Court invited the Judge to respond to the allegation
that he did
not inform Ms Mbana of his past association with the respondent.
In response, he stated that the respondent and
Shepstone & Wylie
Tomlinsons Inc, a Pietermaritzburg firm, formed an association in
about 1988. At the time, he was a
director of Shepstone &
Wylie Tomlinsons Inc. The association, which entailed the
remittance to the respondent of a percentage
of the earnings of
Shepstone & Wylie Tomlinsons Inc, was dissolved in March 2004.
The Judge was appointed as a member
of the bench of the Labour Court
in May 2010.
[17]
When Ms Mbana’s matter was allocated to his trial roll
in
November 2012, he avers that he requested his secretary to advise the
parties of his past association with the respondent.
In support
of this, he adduced affidavits from his secretary and an attorney
from the respondent. Furthermore, the Judge
avers that during
the pre-trial conference he personally informed Ms Mbana of his past
association.
[18]
Ms Mbana vehemently denies that she was ever informed. This
creates a dispute of fact between her and the Judge, which cannot be
resolved on the papers. As the Judge is not a respondent
in
this matter, the
Plascon-Evans
rule does not apply.
[3]
[19]
On 3 December 2014, this Court issued directions inviting the
parties
to make submissions on how the dispute of fact should be addressed.
Ms Mbana submits that an oral hearing, where
evidence would be
led and the relevant parties subjected to cross-examination, is the
appropriate solution. As the facts
relating to the unfair
discrimination claim have been established and are largely common
cause, the respondent submits that the
claim of unfair discrimination
can be decided through a rehearing on the same factual issues without
addressing the credibility
of the Judge
.
[20]
This Court decided to dispose of the matter on the
basis of these submissions, and on the strength of the parties’
pleadings,
without oral argument.
[21]
It is worth noting that Ms Mbana lodged a complaint against
the Judge
with the Judicial Conduct Committee for allegedly failing to disclose
that he had previously practised as an attorney
and a partner at the
respondent prior to presiding over the trial. That complaint
has since been dismissed.
Leave to Appeal
[22]
In determining whether an application for leave to appeal
should be
granted, we must be satisfied that the application raises a
constitutional issue or an arguable point of law of general
public
importance which ought to be considered by this Court.
[4]
We must also be satisfied that it is in the interests of
justice to grant leave. Ultimately, the decision to grant
leave
is a matter for the discretion of this Court. And although
there are other factors to consider, prospects of success
remain an
important consideration in the interests of justice enquiry.
[5]
Unfair discrimination
[23]
The claim of direct or indirect unfair discrimination implicates
the
right to equality in our Constitution.
[6]
This is a fundamental right entrenched in our Bill of Rights,
and therefore this claim intrepidly raises a constitutional
issue.
[7]
[24]
The essence of Ms Mbana’s contention is that she has
been
unfairly discriminated against, directly or indirectly, based on her
race and social origin or an arbitrary ground.
The gravamen of
her complaint is that the respondent’s conduct constitutes
unfair discrimination because it denied her an
opportunity to
commence employment in January 2009 as she had not completed her LLB
degree while allowing other candidates, one
black person and two
white persons, to commence employment without LLB degrees.
[25]
The EEA proscribes unfair discrimination in a manner akin
to section
9 of the Constitution.
[8]
Apart from permitting differentiation on the basis of the internal
requirements of a job in section 6(2)(b),
[9]
the test for unfair discrimination in the context of labour law is
comparable to that laid down by this Court in
Harksen.
[10]
[26]
The first step is to establish whether the respondent’s
policy
differentiates between people.
[11]
The second step entails establishing whether that differentiation
amounts to discrimination.
[12]
The third step involves determining whether the discrimination is
unfair. If the discrimination is based on any of
the listed
grounds in section 9 of the Constitution, it is presumed to be
unfair.
[13]
[27]
It must be noted, however, that once an allegation of unfair
discrimination based on any of the listed grounds in section 6 of the
EEA is made, section 11 of the EEA places the burden of proof
on the
employer to prove that such discrimination did not take place or that
it is justified.
[14]
Where discrimination is alleged on an arbitrary ground, the burden is
on the complainant to prove that the conduct complained
of is not
rational, that it amounts to discrimination and that the
discrimination is unfair.
[15]
[28]
The respondent has a graduate recruitment programme.
Applications are received and interviews for potential candidate
attorneys are conducted at the beginning of each year.
Successful applicants are offered employment as candidate attorneys
with effect from January the following year. Both Ms Tooley
and
Mr Mchunu fell under this programme.
[29]
The respondent also has a bursary programme offering to pay
for
university tuition fees towards an LLB degree. Unlike the
graduate recruitment programme, the recipient of a bursary
is
guaranteed employment as a candidate attorney on attaining the
degree. Ms Mbana fell under this programme.
[30]
Both of these programmes entailed the candidate attorneys’
employment policy that, barring any exceptional circumstances, only
candidates who had completed their LLB degrees would commence
employment as candidate attorneys in January after their year of
completion. This policy was in line with the respondent’s
practice of candidate attorneys participating in its Graduate
Programme commencing in January each year. The exceptional
circumstances related solely to the respondent’s business and
operational needs rather than the individual circumstances
of the
candidates.
[31]
The respondent was made aware of Ms Mbana’s inability
to
complete her studies six months in advance, and therefore it was in a
position to recruit another candidate in her place.
In regard
to Ms Tooley and Mr Mchunu, the respondent discovered that they had
not completed their LLB degrees only after they had
commenced
employment.
[32]
The respondent states that its litigation department would
have
suffered had it terminated the employment of Ms Tooley and Mr
Mchunu. Because it recruits candidates a year in advance,
when
it learned of Ms Tooley’s and Mr Mchunu’s situation in
February 2011, it was not in a position to recruit further
candidates
to replace them. Of the five candidate attorneys that the
respondent had recruited for 2011, one of them did not
commence
employment as expected. Had the respondent immediately
dismissed Ms Tooley and Mr Mchunu, it would have been left
with only
two out of the five candidates it had sought to employ for 2011.
Instead, the respondent, who was not prepared
for this occurrence,
entered into an agreement with Ms Tooley and Mr Mchunu that they
would have to complete their degrees by June
2011 or they would no
longer be employed as candidate attorneys. Indeed in June 2011,
Ms Tooley obtained her degree in time
and continued her employment.
Mr Mchunu, on the other hand, left the respondent’s employ
because he did not complete
his degree in time. The business
needs of the respondent dictated that these candidate attorneys be
retained under these
circumstances. The Labour Court found that
these reasons constituted exceptional circumstances justifying the
respondent’s
deviation from its policy of employing candidate
attorneys and was not discriminatory. We are not in a position
to gainsay
that finding.
[33]
In regard to Ms van Rooyen, the unrefuted evidence shows that
she had
been in the employ of the respondent for five years as a secretary
before being employed as a candidate attorney.
She began
studying part-time towards her LLB degree prior to entering into an
agreement with the respondent that she would move
to a branch office
in Richards Bay and that she would also perform administrative tasks
whilst at that office.
[34]
The respondent distinguishes this from Ms Mbana’s situation.
It submits that there was a vacancy in the Richards Bay office at the
time that also required the performance of administrative
tasks.
Ms van Rooyen was experienced and had agreed to move from the Durban
head office to the Richards Bay office.
In addition, she was
not part of the respondent’s graduate programme. The
Labour Court concluded that, not only were
these circumstances
fundamentally different from those of Ms Mbana, they occurred in
2005. There is no evidence of any vacancy
which Ms Mbana could
have filled in any of the respondent’s branch offices between
2008 and 2011. And even though she
had enquired about the
possibility of being employed in a branch office, Ms Mbana had
swiftly retracted that enquiry. The
respondent was therefore
not afforded an opportunity to consider Ms Mbana’s request to
be placed in a branch office similar
to Ms van Rooyen, making her
situation markedly different from that of Ms van Rooyen.
In addition, Ms Mbana was guaranteed
employment as a candidate
attorney because of her bursary, while Ms van Rooyen had been part of
the respondent’s personnel.
[35]
What is startling is that Mr Mchunu’s case demonstrates
how the
differential treatment was unlikely attributable to race or social
origin. Like Ms Mbana, he is also a black person.
In the
circumstances, Ms Mbana’s claim that she was discriminated
against on the basis of race loses traction. Although
Ms Mbana
alleges that Mr Mchunu was employed by the respondent because he
had a bursary from Unilever, a large client of the
respondent, she
proffers no evidence to sustain this allegation.
[36]
She has similarly failed to demonstrate how the alleged unfair
discrimination was based on an arbitrary ground. Ms Mbana has
not shown that the respondent’s recruitment policy was
irrational, that it amounted to discrimination or that it was
unfair. Instead, the respondent has reasonably justified its
policy and its application of the policy to her circumstances.
Moreover, the respondent has sufficiently justified its deviation
from the recruitment policy in the instances of Ms Tooley, Mr Mchunu
and Ms van Rooyen.
[37]
Put simply, there were no exceptional circumstances that required
the
respondent to deviate from its recruitment policy for Ms Mbana.
Therefore, the claim of direct or indirect unfair discrimination
based on race, social origin or an arbitrary ground has no prospects
of success and it is not in the interests of justice that
we grant
leave to appeal.
[38]
Despite this conclusion, it must be stressed that an employer’s
business and operational needs will not simply be accepted on the
employer’s own say-so. It must be shown, objectively,
that there are genuine and legitimate business and operational needs
that justify the differential treatment of employees.
We
believe that, in this case, the respondent has adequately done so.
Hence we conclude that Ms Mbana’s prospects of
success on her
substantive complaints against the respondent are poor.
Bias
[39]
The Judiciary is an essential component of our constitutional
democracy and judicial authority is vested in the courts by the
Constitution.
[16]
Therefore, allegations of actual bias or a reasonable apprehension of
bias certainly raise a constitutional issue.
[17]
[40]
In
Basson II
we emphasised that courts must treat differently
allegations of actual or perceived bias, based on the conduct of a
judge during
the trial, and actual or perceived bias owing to a
judge’s associations.
[18]
When considering the issue of bias in a trial court, there is a
difference between grounding a complaint of bias on the conduct
of
the judge in hearing the case, and grounding such a complaint on the
relationship between the judge and one of the parties or
witnesses.
[19]
The test, however, in claims of actual or perceived bias arising from
both trial court conduct and judicial association is
the same: a
litigant must show that “a reasonable, objective and informed
person would, on the correct facts, reasonably
apprehend bias”.
[20]
In other words, a litigant must show a reasonable apprehension
of bias to succeed.
[41]
There is a presumption in our law that judicial officers are
impartial when adjudicating disputes
[21]
and, as it was noted by this Court in
Irvin & Johnson
, the
threshold a litigant would have to meet to establish a reasonable
apprehension of bias is high.
[22]
Actual bias
[42]
In support of the allegation of actual bias, Ms Mbana claims
that the
Judge, during the pre-trial conference, did not display fairness and
appeared to favour the respondent’s counsel.
It is clear
from her founding affidavit that she was aware of this alleged bias
during the pre-trial conference. On this,
she affirms that
“
[d]uring the pre-trial conference . . . it
became clear to me that the Judge was biased in favour of the
respondent”.
There is nothing indicating why Ms
Mbana did not seek the recusal of the Judge during the pre-trial
conference or at any
point during the trial.
[43]
Ms Mbana raised the allegations of actual bias for the first
time
when she brought an application for condonation and an amendment to
her grounds for leave to appeal in the Labour Court.
However,
the application to amend was brought after her application for leave
to appeal was dismissed and thus, the allegations
were only properly
raised in her petition to the Labour Appeal Court.
[44]
Had Ms Mbana apprehended bias in the Labour Court, as she
asserts she
did, she would ordinarily have raised these allegations at the trial
stage or in her initial application for leave
to appeal. This
Court in
Bernert
noted that a litigant who did not raise an
alleg
ation of bias timeously does not display
conduct consistent with a reasonable apprehension of bias.
[23]
It is not in the interests of justice to permit a
litigant who had full knowledge upon which the claim of actual bias
is made to
wait until an adverse judgment is pronounced before
raising these allegations. To do so would undermine the
administration
of justice.
[45]
In
Bernert
we
emphasised that “litigation must be brought to finality as
speedily as possible”.
[24]
That applies with equal force in this case. It is not
desirable for a litigant, after a trial has been completed and
she
has already sought leave to appeal on other grounds, to amend her
grounds for leave to appeal by including new facts alleging
actual
bias.
[46]
For
these
reason
s,
we find that it is not in the interests of justice, at this late
stage, to permit Ms Mbana to raise a complaint of actual bias.
Reasonable apprehension of bias
[47]
Ms Mbana alleges a reasonable apprehension of bias on the
basis that
the Judge did not disclose his previous association with the
respondent. She avers that on 29 January 2013,
she
stumbled upon a 1998 Labour Court judgment where the Judge was
reflected as a legal representative of Shepstone & Wylie
Tomlinsons Inc.
[25]
While this might explain why the allegation of the reasonable
apprehension of bias was not raised during the trial, the fact
that a
judge may have had a previous association with the respondent does
not, in and of itself, meet the high bar that a complainant
of
perceived bias is required to meet.
[26]
[48]
A complainant must be able to show that a judge’s past
association may reasonably be apprehended to obstruct the discharge
of a judge’s judicial duty. Hence, merely alleging
that a
judge may have been associated with other people in the past, without
more, does not meet the test.
[27]
More to the point, the claim that a judge hearing a case had a
pecuniary association with a litigant that ended a whopping
six years
before his appointment does not give rise to any reasonable
apprehension that the judge may be biased in favour
of that litigant.
[49]
It is, however, desirable as a practical matter that a judge
should
disclose, in writing, his association with the litigants as this
diminishes the risk of disputes. This is important
to maintain
the confidence that the public repose in the Judiciary.
[50]
In this case, it is disputed whether the Judge disclosed his
past
association. This dispute of fact can only be resolved by
remitting the matter for oral evidence. However, this
question
of disclosure is not relevant to the determination of the matter and
therefore it would not be in the interests of justice
to order the
remittal.
[28]
[51]
For all these
reasons we find that it is
not in the interests of justice to grant leave.
Labour Court and Supreme Court of Appeal costs
[52]
When granting costs against Ms Mbana, the Labour Court took
into
consideration the provisions of section 162 of the Labour Relations
Act.
[29]
In so doing, it was cognisant of the requirements of the law and
fairness. It considered the conduct of the parties
during and
after the preparation of the pre-trial minute and concluded that
costs would be borne by Ms Mbana, but limited them
only to costs
incurred after the conclusion of the pre-trial minute. The
determination of costs is a matter that lies in
that court’s
discretion.
[30]
Ms Mbana has not made a compelling argument that in exercising
that discretion, the Labour Court acted capriciously or applied
the
law incorrectly.
[53]
Similarly, Ms Mbana has proffered no cogent argument that
the Supreme
Court of Appeal exercised its discretion capriciously or incorrectly
when granting the costs order, nor has she identified
exceptional
circumstances warranting this Court’s intervention in this
regard.
[31]
[54]
All be told, it is not in the interests of justice to grant
leave in
respect of the costs orders of the Labour Court and the Supreme Court
of Appeal.
Costs in this Court
[55]
The best course to follow in this matter is to make no order
as to
costs.
Order
[56]
In the result, the following order is made:
1. The application for leave to appeal
is dismissed.
2. There is no order as to costs.
For the Applicant:
For the Respondent:
In person.
M Pillemer SC instructed by Shepstone & Wylie.
[1]
55 of 1998.
[2]
The Labour Court order, at para 52, states:
“The applicant’s
application is dismissed and the applicant is ordered to pay [the]
respondent’s costs incurred
after the conclusion of the
pre-trial minute.”
[3]
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C, discussed and
approved in
Rail Commuters Action Group and Others v Transnet Ltd
t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para 53, where this Court held:
“Ordinarily, the Court will
consider those facts alleged by the applicant and admitted by the
respondent together with the
facts as stated by the respondent to
consider whether relief should be granted. Where, however, a
denial by a respondent
is not real, genuine or in good faith, the
respondent has not sought that the dispute be referred to evidence,
and the Court
is persuaded of the inherent credibility of the facts
asserted by an applicant, the Court may adjudicate the matter on the
basis
of the facts asserted by the applicant.”
[4]
Section 167(3) of the Constitution. See also
Paulsen and
Another v Slip Knot Investments 777 (Pty) Limited
[2015] ZACC 5.
[5]
See
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1)
BCLR 36
(CC) at para 12, where this Court held that—
“[i]n considering the interests
of justice, prospects of success, although not the only factor, are
obviously an important
aspect of the enquiry. An applicant who
seeks leave to appeal must ordinarily show that there are reasonable
prospects
that this Court will reverse or materially alter the
decision of the Supreme Court of Appeal”.
See also
Fraser v Naude and Another
[1998] ZACC 13
;
1999
(1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 7 and
S v
Pennington and Another
[1997] ZACC 10
;
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC) at para 44.
[6]
Section 9 provides:
“(1)
Everyone is equal before the law and has the right to equal
protection
and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and other measures designed to protect or advance persons,
or
categories of persons, disadvantaged by unfair discrimination may be
taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, conscience, belief, culture,
language and birth.
(4)
No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination is
fair.”
[7]
Sali v National Commissioner of the South African Police Service
and Others
[2014] ZACC 19
;
2014 (9) BCLR 997
(CC) (
Sali
)
at paras 38 and 97.
[8]
See section 6(1) of the EEA, which provides:
“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.”
See also section 9 of the Constitution above n 6.
[9]
Section 6(2) of the EEA provides:
“It is not
unfair discrimination to—
(a)
take affirmative action measures consistent with the purpose
of this
Act; or
(b)
distinguish, exclude or prefer any person on the basis of an
inherent
requirement of a job.”
[10]
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) (
Harksen
) at para 54.
See also
Sali
above n 7 at paras 9-10.
[11]
Harksen
id at para 48, where this Court stated:
“The question whether there has
been differentiation on a specified or an unspecified ground must be
answered objectively.”
[12]
Id at para 54.
[13]
Id.
[14]
Section 11(1) of the EEA provides:
“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—
(a) did
not take place as alleged; or
(b) is
rational and not unfair, or is otherwise justifiable.”
[15]
Section 11(2) of the EEA provides:
“If unfair discrimination is
alleged on an arbitrary ground, the complainant must prove, on a
balance of probabilities,
that—
(a) the
conduct complained of is not rational;
(b) the
conduct complained of amounts to discrimination; and
(c) the
discrimination is unfair.”
[16]
Section 165(1) of the Constitution.
[17]
Stainbank v South African Apartheid Museum at Freedom Park and
Another
[2011] ZACC 20
;
2011 (10) BCLR 1058
(CC) at paras 27 and
30;
De Lacy and Another v South African Post Office
[2011]
ZACC 17
;
2011 (9) BCLR 905
(CC) at para 47;
Bernert
v ABSA Bank
[2010] ZACC 28
;
2011
(3) SA 92
(CC);
2011 (4) BCLR 329
(CC)
(
Bernert
)
at para
18;
S
v Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR
1192
(CC) (
Basson II
) at paras 24-5; and
S v Basson
[2004]
ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) (
Basson I
)
at paras 21-2.
[18]
Basson II
id at para 33.
[19]
Id.
[20]
Bernert
above n 17 at para 65. See also
President of
the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) (
SARFU II
) at para 48.
[21]
Bernert
above n 17 at para 86;
Basson II
above n 17 at
para 42;
South African Commercial Catering and Allied Workers
Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish
Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR
886
(CC) (
Irvin & Johnson
) at para 12; and
SARFU II
id
at para 41.
[22]
Irvin & Johnson
id at para 49.
[23]
In
Bernert
above n 17 at para 71, this Court said:
“The conduct of the applicant
is simply inconsistent with a reasonable apprehension of bias. If
he had any apprehension,
it must have been of the kind that he
thought could be cured by a judgment in his favour. But that
can hardly be said to
be a reasonable apprehension of bias that is
reasonably entertained. The applicant wanted to have the best
of both worlds.”
[24]
Bernert
id at para 75. See also
De Lacy
above n
17 at para 61.
[25]
The Labour Court judgment dismissing Ms Mbana’s claim of
unfair discrimination was delivered on 27 November 2012 and
the
Labour Court judgment dismissing her application for leave to appeal
was delivered on 6 February 2013. The allegations
of bias
were only properly raised in the Labour Appeal Court in
October 2013.
[26]
In
SARFU II
above n 20 at para 76 this Court stated:
“In our opinion it follows that
a reasonable apprehension of bias cannot be based upon political
associations or activities
of Judges prior to their appointment to
the Bench unless the subject matter of the litigation in question
arises from such associations
or activities.”
[27]
In
Bernert
above n 17 at para 78, this Court noted that—
“[m]ost judicial officers would
have been engaged in a number of activities in pursuit of their
professional lives before
their appointment. These activities
contribute to the expertise that judicial officers bring to the
bench. What is
required is that judicial officers should
decide cases that come before them without fear, favour or
prejudice, according to
the facts and the law, and not according to
their subjective personal views. Of course, where a judicial
officer, in his
or her former capacity, either advised or acquired
personal knowledge relevant to a case before the court, it would not
be proper
for that judicial officer to sit in that case.”
(Footnote omitted.)
[28]
See
Masetlha v President of the Republic of South Africa and
Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) at paras 26 and 92-6 where this Court held that where a dispute
of fact is not material to the determination of the issue,
it would
not be in the interests of justice to grant leave or to remit the
matter for oral evidence. See also
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10)
BCLR 1059
(CC) at paras 234-9.
[29]
66 of 1995. Section 162 provides:
“(1)
The Labour Court may make an order for the payment of costs,
according
to the requirements of the law and fairness.
(2)
When deciding whether or not to order the payment of costs, the
Labour Court may take into account—
(a)
whether the matter referred to the Court ought to have been referred
to arbitration in terms of
this Act
and, if so, the extra
costs incurred in referring the matter to the Court; and
(b)
the conduct of the parties—
(i)
in proceeding with or defending the matter before the Court;
and
(ii)
during the proceedings before the Court.
(3)
The Labour Court may order costs against a party to the
dispute
or against any person who represented that party in those
proceedings before the Court.” (Emphasis in original.)
[30]
See
Giddey NO v J C Barnard and Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC);
2007 (2) BCLR 125
(CC) at paras 19-21.
[31]
See
Tebeila Institute of Leadership, Education, Governance and
Training v Limpopo College of Nursing and Another
[2015] ZACC 4
at para 12 and
Biowatch Trust v Registrar, Genetic Resources and
Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 11.