Adewale v Department of Social Development Gauteng Province (J1046/23) [2025] ZALCJHB 267 (20 May 2025)
- Citation
- [2025] ZALCJHB 267
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- M T M Phehane
- Case number
- J1046/23
More details
- Court
- Labour Court Johannesburg
- Panel
- M T M Phehane
- Case number
- J1046/23
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The applicant failed to establish a case of unfair discrimination as required by the Employment Equity Act. She did not specify the prohibited ground of discrimination to which the alleged harassment related, nor did she demonstrate that the conduct impaired her dignity in a manner contemplated by the Act. Furthermore, the applicant did not quantify the damages sought. The court found that the applicant has alternative remedies available, such as an unfair labour practice claim or a delictual claim for damages, where quantification is possible. As a result, the application for default judgment was dismissed.
Court disposition
Application for default judgment dismissed.
Orders
- The default judgment application is dismissed.
02
Material facts
Parties
Eva Adewale
ApplicantDepartment of Social Development Gauteng Province
Respondent03
Procedural history
Posture
Default Judgment Application / Application for Default Judgment
04
Questions and positions
Legal issues
- 01
Whether the applicant has established a case of unfair discrimination under the Employment Equity Act.
- 02
Whether the alleged harassment relates to a prohibited ground of discrimination.
- 03
Whether the applicant has quantified the damages sought.
Party arguments
- Applicant
- The applicant alleges she was subjected to harassment in the workplace and seeks maximum damages for unfair discrimination. She claims distress resulting from the alleged conduct but does not specify the prohibited ground of discrimination or quantify the damages sought.
- Respondent
- The respondent did not participate, as this was a default judgment application. The court considered the pleadings and found that the applicant failed to establish the necessary elements for unfair discrimination, including the link to a prohibited ground and quantification of damages.
05
Court’s reasoning
Legal principles
- 01
Employment Equity Act 55 of 1998
Section 6(1) of the Employment Equity Act prohibits discrimination on specified or arbitrary grounds. To establish discrimination, the applicant must show that the conduct relates to a prohibited ground or an arbitrary ground that impairs dignity.
- 02
Harksen v Lane NO [1997] ZACC 12; 1998 (1) SA 300 (CC) at para 48
The Constitutional Court has established a two-legged test for discrimination: first, whether there is discrimination on a specified or unspecified ground; second, whether the discrimination is unfair. Fairness is presumed for listed grounds, but must be established for arbitrary grounds.
- 03
Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, GN R1890 in GG 46056 of 18 March 2022
Harassment in the workplace is defined as unwanted conduct that impairs dignity and creates a hostile environment, and must be related to a prohibited ground of discrimination.
06
Ratio, limits and disposition
Ratio decidendi
The applicant failed to establish a case of unfair discrimination as required by the Employment Equity Act. She did not specify the prohibited ground of discrimination to which the alleged harassment related, nor did she demonstrate that the conduct impaired her dignity in a manner contemplated by the Act. Furthermore, the applicant did not quantify the damages sought. The court found that the applicant has alternative remedies available, such as an unfair labour practice claim or a delictual claim for damages, where quantification is possible. As a result, the application for default judgment was dismissed.
Obiter and limits
- The distress experienced by the applicant is acknowledged, but the legal requirements for unfair discrimination were not met.
- Alternative remedies, such as unfair labour practice or delictual claims, remain available to the applicant.
Court disposition
Application for default judgment dismissed.
- The default judgment application is dismissed.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J1046/23
In the matter between:
EVA
ADEWALE
Applicant/Plaintiff
and
DEPARTMENT
OF SOCIAL DEVELOPMENT
GAUTENG
PROVINCE
Respondent/Defendant
Decided: In Chambers
Delivered: 20 May 2025 January 2025(This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 20 May 2025.)
JUDGMENT
PHEHANE, J
[1] This is a default judgment application in which the plaintiff seeks maximum damages for unfair discrimination.
[2] The plaintiff has not made out a case of unfair discrimination on the pleadings.[1]
[3] In her pleadings, the plaintiff states that she has been subjected to harassment. However, she does not set out on which one of the prohibited grounds of discrimination the harassment she complains about is related to. She has also not demonstrated that the
harassment she complains about was a result of an arbitrary ground which has impaired her dignity as a human being or affects her in a comparable serious manner.[2]
[4] The plaintiff has not placed any facts before this Court that demonstrate that she is diagnosed with a mental illness, is treated differently because of that mental illness, and such different treatment has impaired her dignity. Further, the plaintiff does not plead the quantum of damages she seeks.
[5] The distress that the plaintiff avers is not minimised. She has alternative remedies she may pursue in the form of an unfair labour
practice or a delictual claim for damages, where she is able to quantify her damages.[3]
[6] In view of the afore-going, the following order is made:
Order:
1. The default judgment application is dismissed.
M. T. M. Phehane
Judge of the Labour Court of South Africa
[1] Section 6(1) of the Employment Equity Act 55 of 1988 (EEA) prohibits discrimination on the specified grounds listed in that subsection,
or any arbitrary ground. The Constitutional Court in Harksen v Lane NO [1997] ZACC 12; 1998 (1) SA 300 (CC) at para 48 sets out a two-legged test to establish discrimination. The first leg of the test is to answer objectively, whether there is discrimination on a specified or unspecified ground. If answered in the affirmative, the second leg of the test is to answer whether the discrimination is unfair. Fairness is presumed if discrimination on a listed ground is established; unfairness must be established if discrimination is on an unspecified or arbitrary ground. The plaintiff has not passed the first leg of this test.
[2] Items 4.1 read with 4.8 of the Code of Good Practice on the Prevention and Elimination pf Harassment in the Workplace published
in GN R1890 in GG 46056 of 18 March 2022 defines harassment as unwanted conduct which impairs the dignity of an employee and
creates a hostile or intimidating work environment and is related to one of the prohibited grounds of discrimination set out in the EEA.
[3] See: Tshazibane v Montego Pet Nutrition (2022) 43 ILJ 2610 (LC).
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