Masubelele v Rand Water (JS141/19) [2021] ZALCJHB 372 (20 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS141/19

In the matter between:

MAUREEN

MAKGOLO MASUBELELE Applicant

and

RAND WATER Respondent

Heard: 05 October 2021 (via virtual proceedings)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 20 October 2021.

Summary: Special plea – alleged unfair discrimination in terms of EEA – when the conduct complained of is continuing and repetitive there is no need to apply for condonation.

JUDGMENT

NKUTHA - NKONTWANA, J

Introduction

[1] Before me is a special plea arising from unfair discrimination action instituted by the applicant in terms of section 10 of the Employment Equity Act[1] (EEA). The applicant is alleging that she was, inter alia, unfairly discriminated against, sexually harassed, victimised and sabotaged by her superior, Mr German Makoe (Mr Makoe), during the course and scope of his employment with the respondent.

[2] The incidents complained about date back to 2008. It is alleged by the applicant that the conduct of Mr Makoe towards her did not change despite the fact that he had been previously disciplined and dismissed consequent to a grievance that was lodged in 2008. However, he was reinstated by the internal appeal authority in 2010. Still, the applicant continued working under Mr Makoe’s supervision thereafter.

[3] In August 2017, the applicant lodged a further grievance over incidents that allegedly occurred in June 2017. When the employer failed to respond to the August grievance, she lodged another grievance in December 2017. The outcome of that grievance was issued in April 2018. She challenged that the outcome and the appeal outcome was issued on 6 November 2018. On 19 November 2018, she referred a dispute to the CCMA.

[4] The respondent takes a jurisdictional point by way of a special plea. It contends that the CCMA had no jurisdiction to conciliate the matter and, by the same token, this Court has no jurisdiction to adjudicate the matter as the alleged acts or omissions complained about occurred in 2008 and 2017. As such, the referral to the CCMA was outside the six months period required by section 10(2) of the EEA. The respondent mainly hinged its contention on the LAC decision in Mngadi v Jenkin NO and Others,[2] which was only referred to during oral submissions. The applicant’s counsel sought an indulgence to file supplementary heads of argument addressing this authority. Indeed, the indulgence was granted. The parties were directed to file supplementary heads of argument and they have duly complied.

Submissions

[5] The issued that served before the LAC in Mngadi relates to the interpretation and application of sections 10(2) and 10(3) of the EEA. In essence, that matter turned on the timing of the dispute and whether the commissioner correctly dismissed jurisdiction ratione temporis. The appellant employee in that matter was employed as a shift leader grade 11 since 2008. His complaint was that, following his promotion in 2008, he was discriminated against as he was paid less than his subordinates and did not qualify for certain benefits

which he enjoyed when he was an operator. The operator position that falls within the defined bargaining unit and thus the scope of the collective agreement concluded by the third respondent and the trade unions representing employees within the bargaining unit.

[6] The appellant employee referred a dispute to the CCMA supported by condonation application. However, he contended that there was no need for him to apply for condonation of the referral since the unfair discrimination related to remuneration and benefits and was ongoing in nature. The time bar in section 10(2) of the EEA, he argued, does not apply to ongoing and repetitive discrimination. The CCMA refused to grant condonation and did not deal with the issue of whether or not there was a need for condonation. This Court per Gash J, ruled that there was a need for the appellant employee to apply for condonation and upheld the condonation ruling by the Commissioner. At appeal, the LAC stated that:

[19] The Labour Court’s finding that the merits of a dispute are relevant to the determination of jurisdiction is mistaken. Whether a claim is meritorious or whether it is good in law is immaterial to the question of jurisdiction. Where jurisdiction depends on the discretionary power to grant condonation, the merits will play a role insofar as the commissioner or court is required to consider the prospects of success. But when, as in this case, a party alleges that jurisdiction ratione temporis exists (and condonation is therefore not necessary) the merits of the claim are unrelated to that enquiry. It was hence incorrect for the Labour Court to find that the CCMA had no jurisdiction to conciliate the dispute merely because it had doubts about the merits of the dispute.

[20] In SA Broadcast Corporation Ltd v Commission for Conciliation, Mediation and Arbitration & others[3] the applicants complained about the promotion of three artisans resulting in ongoing discrimination in terms of which those artisans were favoured at their expense. This court held that since the applicants were continually being paid at a lower rate,

the discrimination was not a single act but a “continuing or repetitive” act that recurred on each pay date. Applying that reasoning to the present case, the appellant’s referral of his dispute in relation to the alleged ongoing and repetitive discrimination was not out of time, at least in relation to the payment of his salaries (discrete repetitive acts) in the six months prior to his referral. Condonation was not required to conciliate the

alleged dispute with regard to those past payments and intended future payments. Consequently, the commissioner erred in declining jurisdiction

entirely to conciliate the alleged dispute and the Labour Court erred in holding otherwise.’ (Emphasis added)

[7] In the present instance, the respondent is adamant in its contention that condonation was imperative since the dispute was referred

outside of the time bar prescribed in terms of the section 10 (2) of the EEA. The applicant, on the other hand, contends that there was no need for condonation as the acts or omissions complained of were continuing and repetitive.

[8] It is clear ex facie the pleadings that, even though the applicant mentioned the incidents that happened in 2008 and 2017, she is also alleging that the impugned conduct and behaviour of Mr Makoe was continuing and repetitive. The applicants asserts in paragraphs 6.5 and 6.6 of the statement of case that in addition to the incidents that allegedly took place in 2008 and 2017, Mr Makoe’s general behaviour towards her was, inter alia, condescending, intimidating, humiliating, solely because she is a female suffering from a medical condition.[4]

[9] To my mind, these are the crucial facts that clothed the Commissioner with the jurisdiction to conciliate the dispute as the referral was well within the time bar prescribed in terms of the section 10 (2) of the EEA. The fact that no further particulars have been provided in relation these allegation is inconsequential. As mentioned in Mngadi, a jurisdictional enquiry has nothing to do with ‘whether a claim is meritorious or whether it is good in law’.[5] Certainly, as correctly submitted by the applicant, the respondent’s construction of the dictum in Mngadi is untenable.

Conclusion

[10] It follows that this Court has jurisdiction to adjudicate the matter in terms of section 10(6)(a) of the EEA. As such, the respondent’s special plea is ill-conceived and must fail.

Costs

[11] Even though costs do not follow the result in this Court, I am satisfied that, in the present instance, a cost order would not offend the principles of law and fairness. The respondent failed to take the jurisdictional point at the CCMA. As result, the applicant, an individual litigant, had to incur legal costs in opposing the special plea when this could have been avoided had the jurisdictional point been taken at the CCMA.

Order

[12] In the circumstances, the special plea is dismissed with costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate R Kriek

Instructed by: Grové

Attorneys

For the Respondent: Advocate G Phajane

Instructed by: Stephina

Motlhamme Attorneys

[1] Act 55 of 1998, as amended.

[2] [2020] ZALAC 42; [2021] 3 BLLR 248 (LAC); (2021) 42 ILJ 768 (LAC).

[3] (2010) 31 ILJ 592 (LAC).

[4] See: Pleadings bundle, pages 6-7.

[5] Supra n 3 at para 19.