Mcinga v Dr Beyers Naude Local Municipality (PS42/19) [2021] ZALCPE 2 (19 August 2021)

Mcinga v Dr Beyers Naude Local Municipality (PS42/19) [2021] ZALCPE 2 (19 August 2021)

The applicant's statement of claim failed to disclose a cause of action for unfair discrimination because it did not specify any ground of discrimination as required by section 6(1) of the Employment Equity Act. The omission could not be cured by interpretation or by reference to the facts pleaded. However, in the interests of fairness and in line with judicial precedent, the applicant was granted leave to amend the statement of claim within 30 days to comply with the statutory requirements. No costs order was made to avoid deterring applicants from seeking redress for perceived violations of their rights.

Citation
[2021] ZALCPE 2
Parties
Applicant: Mxolisi Amos Mcinga; Respondent: Dr Beyers Naude Local Municipality
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
19 August 2021
Case Number
PS42/19
Procedural Posture
Exception Application / Exception to Statement of Claim; Preliminary Determination
Outcome
Exception upheld; applicant granted leave to amend statement of claim within 30 days; no order as to costs.
Judges
Z Lallie
Legal Topics
Employment Equity Act, Unfair Discrimination, Statement of Claim Requirements
Labour Law Employment Equity Act Unfair Discrimination Statement of Claim Requirements

Case Brief

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Parties

Mxolisi Amos Mcinga

Applicant

Dr Beyers Naude Local Municipality

Respondent

Procedural Posture

Exception Application / Exception to Statement of Claim; Preliminary Determination

Legal Issues

  1. 1 Whether the applicant's statement of claim discloses a cause of action for unfair discrimination under section 6(1) of the Employment Equity Act.
  2. 2 Whether the applicant pleaded a specific ground of discrimination as required by law.
  3. 3 Whether the applicant should be granted leave to amend the statement of claim.

Ratio Decidendi

The applicant's statement of claim failed to disclose a cause of action for unfair discrimination because it did not specify any ground of discrimination as required by section 6(1) of the Employment Equity Act. The omission could not be cured by interpretation or by reference to the facts pleaded. However, in the interests of fairness and in line with judicial precedent, the applicant was granted leave to amend the statement of claim within 30 days to comply with the statutory requirements. No costs order was made to avoid deterring applicants from seeking redress for perceived violations of their rights.

Court Disposition

Exception upheld; applicant granted leave to amend statement of claim within 30 days; no order as to costs.

Orders

  • The exception is upheld.
  • The applicant is granted 30 days from the date of this order to apply for leave to amend his statement of claim to comply with section 6(1) of the Employment Equity Act 66 of 1995.