Cape Peninsula University of Technology v Mkhabela (CA12/2020) [2021] ZALAC 30; (2021) 42 ILJ 2384 (LAC); [2021] 12 BLLR 1187 (LAC) (27 September 2021)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN)

Reportable

Case no: CA 12/2020

CAPE PENINSULA UNIVERSITY OF TECHNOLOGY Appellant

and

OCTAVIA MKHABELA Respondent

Heard: 02 September 2021

Delivered: 27 September 2021

Coram: Davis JA, Coppin JA and Kubushi AJA

JUDGMENT

DAVIS JA

Introduction

[1] The dispute which gave rise to this appeal began before the court a quo on the basis of a claim brought by the respondent that she had been “constructively dismissed”, as that term is defined in s 186(1)(e) of the Labour Relations Act 66 of 1995. Regrettably, the statement of case was drafted with an exquisite lack of precision which rendered it difficult to precisely determine the respondent’s exact cause of action. After submitting that this was a case of constructive dismissal, the statement of claim reads as follows:

‘The dismissal of the Applicant constitutes an automatically unfair dismissal in terms of s 187(1)(f) of the LRA and/or s 6(1) of the EEA in that, among others:

1. The respondent automatically unfairly dismissed the applicant due to harassment or conduct relating to harassment.

2. No valid and/or fair reason existed for the respondent not to convene a hearing to deal with the grievances of the applicant;

3. That the arbitrary discrimination suffered by the applicant was based on, inter alia, her conscience, as far as it relates to conducting herself in accordance with the respondent’s policy framework and/or her

belief and/or political opinion or a combination of any of these.’

[2] To some extent there was a belated attempt to clarify the issues which the court a quo was required to decide in the pre-trial minute in which the key issues are set out thus:

‘Whether the respondent created or allowed an environment that was unbearable and/or intolerable for the applicant.

Whether the applicant was constructively dismissed.

Whether the applicant was harassed in terms of s 6 (3) of the Employment Equity Act.

Whether the applicant’s dismissal, if it is found that she was constructively dismissed, constituted an automatically unfair dismissal.

Whether the applicant is entitled to any relief and, if so, the nature of such relief.’

[3] Sitting in the court a quo Rabkin-Naicker J held, insofar as the alleged dismissal dispute was concerned, that no dispute had been referred to conciliation, and there was no evidence that the true nature of the dispute was an automatically unfair dismissal, constructive or otherwise.

Accordingly, the learned judge found that she did not have jurisdiction to decide the dismissal claim. However, she found that

the respondent had suffered unfair discrimination within the meaning of s 5 and s 6 of the Employment Equity Act 55 of 1998 (the EEA) and that the respondent should thus be awarded in an amount equivalent to 13 months of her salary.

[4] It is against this finding that the appellant has approached this Court. Given that there was no cross-appeal with regard to the unfair dismissal claim, the only issue before this Court is whether the finding of unfair discrimination in terms of s 5 and s 6 of the EEA should be set aside on appeal.

The facts

[5] Most of the facts which are relevant to the disposition of this appeal are common cause. The respondent commenced employment with the appellant on 1 August 2015 in the position of Executive Director: Office of the Vice Chancellor in terms of a fixed term contract for a period of five years. This contract provided that she was required to report to Dr Nevhutalu, the Vice Chancellor of the appellant. In May 2016, she was requested to act in the position of Executive Director: Human Capital Portfolio and commenced her duties in this position on 1 July 2016. On 31 October 2016, Professor John Volmink was appointed as the Acting Vice Chancellor of the appellant.

[6] During the latter of 2016, there was considerable unrest on the campus. A meeting, which was referred to in the papers as having taking place at the Sanlam Centre, was convened in which the respondent, Professor Volmink and the Deputy Vice Chancellor: Knowledge Information Technologies Services, Professor Louie Fourie were all present. Fourie made a presentation concerning, inter alia, the safety and security on the appellant’s campuses during this period of unrest which had flowed from the Fees Must Fall campaign.

[7] It appears that the respondent was disturbed by the security strategy which had been outlined by Fourie, including the use of dogs to curb the unrest on the campus. She responded by asking a series of questions including “how could we in 2016 be talking of the security strategies of 1976?” and “who would be responsible for implementing a strategy that was developed outside of the line function as IDFM was not involved and whether the applicant could present a IT strategy which is not in the applicant’s

portfolio.”

[8] According to the respondent, her comments enraged Fourie who “came to me like a raging bull pointing at me and gesticulating and the Acting Vice Chancellor (Professor Volmink) sat there and did nothing. This harassing trend on the part of Professor Fourie continued unabated and he continued to behave as the anointed chief barking instructions and interfering with the HC portfolio that has nothing to do with him. I felt abused and harassed by Professor Fourie and given the time of his behaviour I cannot but attribute this to the Acting Vice Chancellor as it never manifested in the previous regime.” She also testified that, as Fourie moved aggressively towards her, she had push her head backwards in order to prevent his finger from reaching her forehead. She considered that she was now working in hostile environment and had been degraded by this experience.

[9] As a result of this meeting, she complied a detailed report headed “Situation that makes managing human capital portfolio

unbearable” which was directed to the Acting Chairman of Council and copied to Professor Volmink. Apart from documenting her experience at the Sanlam meeting, she also referred to the difficulty which she encountered in executing the duties of the human capital portfolio “due to the tendency of the Acting Vice Chancellor to make decisions without any consultation or reference to policy”. She also complained that a whole range of matters which concerned employees represented by NEHAWU had been dealt with by the Acting Vice Chancellor without any notification to her, as the officer responsible for human capital, and that no attempt was made by Prof Volmink to involve her in issues which fell within the scope of her human capital portfolio. She also noted that “I have on numerous occasions raised the issue of full financial impact of insourcing and this has been ignored and I have heard in various council sub-committees that insourcing is going to be within contract costs. From the HC perspective that is not feasible as the insourced workers would have to progressively enjoy the same benefits as everyone else.’

[10] The respondent also referred to a letter generated by Fourie to a range of members of staff including student and union representatives of 30 May 2017 in which he said the following:

‘It is with a deep concern in my heart that I am writing this e-mail. Over the past few months it has become incredibly difficult for the committee to make any progress, especially because Dr Octavia Mkhabela does not agree with the insourcing process and do not recognize the RRTT or sub-committee as legitimate structures of CPUT. This has led to numerous disappointments, slowing of the process, lack of cooperation and even conflict. The latest development was her recent refusal to recognize my leadership of the management insourcing team as nominated at the insourcing workshop or to report to me in this regard.

In the light of the above I thus hereby request you as VC and the RRTT to appoint a new Chair of the RRTT insourcing committee as I do not see my way forward to continue in this capacity under these negative and hostile circumstances that is putting CPUT at serious risk.’

[11] The respondent testified that in her view the contents of this email “set the stage for the attack on her on 24 July 2017” at an emergency meeting had been called in the light of the unrest on the campus. Students then gained entry to the meeting and when she looked at her mobile phone a student said “are you taking pictures”. The students had become increasingly aggressive, particularly when they were asking “which one is Mkhabela.”

[12] Following her letter of complaint, she received a response from the Chairperson of the Council on 28 June 2017 in which the chairperson, Ms Nojozi wrote:

‘This serves to inform you that your letter of complaint on the situation in Human Capital and the subsequent reports and letters were brought to the attention of the Council at its meeting held on 24 June 2017 via the EXCO and the Deputy Chairperson’s report. Council carefully considered this matter and decided on a totally new path and process for dealing with your complaint by mandating the Chairperson of Council to reconsider this matter with a fresh approach. We therefore request you to ignore and discard all other communication in response to your letter pending the finalisation of this matter by the Chairperson of Council and final report to all those affected.

We assure you that your matter will be dealt with the governance principles and values and in the best interests of the University.’

[13] On 31 October 2017, she resigned with immediate effect from her employment with the appellant. In her letter, she wrote thus:

‘I returned to CPUT with a great deal of trepidation following personal attacks on my person, both figuratively and literally as a result of malicious rumours spread about me that led to the events of July 24 2017. I believe this could have been avoided, had Council not chosen to ignore my grievance.

My stay in the institution in the past 6 weeks has proven to be detrimental to my safety and psychological and emotion wellbeing. I therefore have no choice but to tender my resignation with immediate effect.’

The court a quo

[14] Rabkin-Naicker J considered that two events were critical to the determination of the respondent’s case; the meeting which had taken place to respond to campus unrest in which the respondent had been threatened by students and the behaviour of Professor Fourie and others at the so-called Sanlam meeting. She also placed considerable emphasis on the email which had been generated by Fourie in arriving at the following conclusion:

‘It is not necessary to deal with the issues of whether the email was the proximate cause of the harassment in determining the unfair

discrimination claim. The applicant was harassed in the Boardroom and in the building that day. She was singled out and was the target of threatening behaviour by students and workers on that day. On the Court’s finding above, she was also the subject of harassment at the Sanlam meeting. This harassment was directed at her because of her views on the policy direction the University was taking which was not being undertaken in line with the precepts governing the institution. It seems to me that this arbitrary ground of discrimination on which she relies is palpably one that can be understood as one which has attributes which can demean the dignity of an individual. Experiencing harassment for her views, in the academic environment can be seen as an aggravating factor.’

[15] On the basis of this finding, Rabkin-Naicker J found that the respondent had been subjected to unfair discrimination within the meaning of s 5 and s 6 of the EEA and consequently an award of compensation was justified. It is against the justification of this finding that the appellant has brought this appeal before this Court.

The applicable law

[16] In her claim, the respondent submits that her “dismissal” contravened s 6 of the EEA in that:

‘[t]he arbitrary discrimination suffered by the applicant was based on, inter alia, her conscience as far as it relates to conducting herself in accordance with the respondent’s policy framework and/or her

belief and/or political opinion or a combination of these.’ (my emphasis)

[17] Section 6 (1) of the EEA provides that 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 and birth.’ To the extent relevant, s 6 (3) provides that harassment of an employee is a form of unfair discrimination that is prohibited on any one, or a combination of the grounds of unfair discrimination listed in subsection (1).

[18] It appears from the statement of claim that the respondent relied on three grounds listed in s 6(1) of the EEA, namely, conscience, belief and political opinion. It is instructive that she did not rely on any unlisted ground of discrimination. To the extent that an analogous ground of discrimination was relied on in argument it is relevant to note, as was held by the Constitutional Court in Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300 (CC) at para 43, that discrimination on an unspecified ground arises “if it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them in a comparably serious manner.”

[19] The concept of belief does find some parallel in s 15(1) of the Constitution of the Republic of South Africa, 1996 which guarantees a right of everyone to freedom of conscience, religion, though, belief and opinion. The combination of these rights in one section appears to signify the protection of the right to hold the religious belief of a person’s choice together with the right to entertain agnostic or atheist views and other beliefs. The fact that the right extends beyond religion indicates that the scope of its protection extends beyond protecting the right to belief in a supreme being. See De Vos and Friedman eds South African Constitutional Law and Context (2ed) at 614 – 615.

[20] The phrase “political opinion” cannot be extended to apply to any and every opinion in any matter whatsoever. Its scope must be read within the context of conscience and belief which appear in the same section. Read thus the term rather refers to a broad category of attitudes that a person might hold on matters of concern to her concerning the state, government or society. I have in mind as the contours of ‘opinion ‘a view that is (1) a matter of public concern, (2) expressed in a way that makes it hard to prove whether it is true or false, and (3) cannot be reasonably interpreted to be a factual statement about someone or something.

[21] In the light thereof, it is important to emphasise that the respondent’s case was based upon the conduct of Professors Fourie, and to an extent Volmink, as constituting harassment, in that students and workers’ representatives were abusive towards the respondent and neither Fourie, nor Volmink, came to her assistance. In addition, Fourie’s aggressive behaviour at the Sanlam meeting constituted a form of harassment, as was the statement of Professor Volmink that there was “a pocket of resistance that needs to be dealt with” which the respondent regarded as having been targeted at her conduct, and thus constituting discriminatory conduct in terms of s 6 (1) and (3) of the EEA. Significantly, the court a quo held that ‘the emails sent to students and workers by Professor Fourie make the issue of where “the pockets of resistance statement was made of minor importance”.’

[22] In the final analysis the core finding of the court a quo was that Fourie’s conduct at the management committee meeting held at the Sanlam Centre in November 2016 constituted harassment. There is no question on the papers that Fourie had taken aggressive issue with the respondent’s suggestion that he was motivating for the use of apartheid era security measures, particularly the use of dogs as part of the safety and security plan during ongoing student protest. The email which Fourie generated on 30 May 2017 referred to the respondent contained the following: “It has become increasingly difficult for the committee to make any progress especially because Dr Octavia Mkhabela (respondent) does not agree with the insourcing process and do not recognise the RRTT or subcommittee as legitimate structures of CPUT.”

[23] Regrettably the court a quo failed to examine whether this conduct constituted harassment under the EEA, particularly the conduct that was linked to the three listed grounds on which the respondent had based her case, namely conscience, belief or political opinion.

Conclusion

[24] The essence of the claim brought by the respondent in terms of the ill-drafted statement of claim was that her claim was predicated on the existence of a constructive dismissal. This component of her case was not upheld by the court a quo and there was no cross-appeal in respect of this finding. On its own and based on the case set out in the statement of claim, there is a sufficient ground to dismiss the appeal. The evidence upon which the court a quo made its finding of harassment were based essentially on the Sanlam meeting and the contents of Fourie’s email. As indicated, neither of these pieces of evidence would justify a finding of discrimination on one of the three grounds pleaded by the the respondent, namely, belief, conscience or political opinion. Even though an analogous ground was not pleaded the court a quo strayed into this area. As indicated on the strength of Harksen v Lane, however, there would be no basis by which to extend the category of analogous grounds to any opinion, belief or aspect of conscience outside of that which I set out earlier in this judgment.

The reinstatement of the appeal

[25] Rule 5(8) of the Rules of this Court requires an appellant to deliver the record of appeal within 60 days of the order granting leave to appeal, failing which the appeal is deemed to be withdrawn. Leave to appeal was granted by the court a quo on 4 September 2020 and the record was delivered on 9 December 2020; that is 7 days outside of the prescribed period. The appellant duly applied for the reinstatement of the appeal which was opposed by the respondent. An explanation was provided for this delay in an affidavit provided by the appellant’s attorneys; in essence the transcribers only managed to obtain the correct audio files on 30 November 2020 and completed the task on 8 December 2020 causing the record to be delivered 7 days outside of the prescribed period. Given the approach that I have adopted to the merits of this case together with the short delay which is explained, there is no basis by which to refuse the application to reinstate the appeal which therefore is reinstated.

[26] For all of these reasons therefore the order of the court a quo of 15 June 2020 is set aside and replaced with the following:

‘The application is dismissed with costs.’

[28] As no costs order was sought on appeal there is no order as to costs insofar as the appeal is concerned.

Davis JA

Coppin JA and Kubushi AJA concur.

APPEARANCES:

FOR THE APPELLANT: GA Leslie SC

Instructed by Mcaciso Stansfield Inc.

FOR THE RESPONDENT: RA Arcangeli

Instructed by Ranthako Attorneys.