Mothibi v Department of Education, North West and Another (JS42/14) [2014] ZALCJHB 486 (19 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JS42/14

MOSALA DAVID MOTHIBI................................................................................................. Applicant

and

DEPARTMENT OF EDUCATION, NORTH WEST................................................First Respondent

DR. IS MOLALE NO...............................................................................................Second Respondent

Heard: 14 November 2014

Delivered: 19 December 2014

EXCEPTION - JUDGMENT

TLHOTLHALEMAJE, AJ

Introduction:

[1] The matter before the court concerns an exception raised by the respondents to the applicant’s statement of claim. The

applicant had in his claim, alleged that he was unfairly discriminated against by the respondents following the failure to appoint him to a position subsequent to interviews held in September 2012. In raising the exception, the respondents contended that the

statement of claim lacked the averments, which were necessary to disclose a cause of action.

Background:

[2] The background facts are fairly common cause. The applicant is employed by the first respondent since 1997. He is currently

appointed as a Principal at Kgononyane Secondary School in the Kagisano Molopo Region, North West Province. In 2012, the first

respondent advertised a position of Circuit Manager at Tlhakgamang district. The applicant had applied for the position and was

shortlisted for interviews together with four other candidates in September 2012. It is common cause that none of the candidates were appointed. Furthermore, despite the applicant being recommended as the best candidate, the position was nevertheless re-advertised.

[3] The applicant contended that he heard through the ‘grapevine’ that he was the top scorer and was recommended. He was further ‘informed’ that he was not appointed due to ‘political involvement’ by the local community and certain individuals within the first respondent. The rumours were allegedly confirmed at some stage when he received correspondence from the second respondent, informing him that he was not appointed due to the reason that the local community in Tlhakgamang demanded that the first respondent must appoint a person from that area.

[4] Having addressed a grievance to the second respondent and ultimately to the MEC for Education in North West Province, the applicant had then referred an unfair discrimination dispute to the CCMA. When conciliation failed, he then approached this Court with his claim.

The legal framework and evaluation:

[5] An exception is a legal objection intended to address a defect inherent in the other party’s pleadings. Where it is alleged that the pleadings lack averments, which are necessary to sustain an action or defence, the litigant is entitled to take an exception to have the action or defence dismissed even before the merits of the matter are considered. Exceptions may be raised under rule 11 of this Court read with rule 23 of the Uniform Rules of the High Court[1].

[6] The issue in this case is whether the applicant, who had placed reliance on section 6 of the Employment Equity Act[2], has set out any grounds for his claim of alleged unfair discrimination to be responded to by the respondents. Within the context of determining an exception where unfair discrimination is claimed, Waglay J (as he then was) in Numsa and Others v Gabriel (Pty) Ltd[3] held that:

“A complainant alleging unfair discrimination within the meaning of s 6(1) of the EEA, must establish that the differential treatment

complained of, amounts to discrimination that is unfair. Where the complainant can link the differentiation to a listed ground, a presumption of both discrimination and unfairness is triggered. Where the differential treatment is not based on a listed ground, it is not sufficient to merely allege that the employment policy or practice in question is arbitrary; the complainant must allege and prove that the policy and practice is based on an analogous ground to the listed ground.

What is therefore required, is that a complainant must clearly identify the ground relied upon and illustrate that it shares the common trend of listed grounds, namely, that “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 adversely in a comparable manner”.

A complainant relying on an unlisted ground is further required to establish that the alleged discrimination is unfair. This stage of the test “focuses primarily on the impact of discrimination on the complainant and others in his or her situation.”

[7] As appears from his pleadings and in response to the exception raised, the only basis upon which the applicant relied is that he was not appointed on the grounds of his origin, i.e. in that he did not come from the area where the position arose and was advertised. He held the view that his non-appointment after the interviews on 18 September 2012 was based on discriminatory grounds, as he did not come from the area where the vacancy had occurred. This he contended, occurred despite the fact that he was in any event, employed in the same district.

[8] The applicant had also submitted that the respondent had not up to date, set out which of the employment equity plan requirements had led to the non-appointment of any of the candidates interviewed on 18 September 2012 as alleged. He further submitted that a candidate preferred by the community was in fact appointed after the position was re-advertised, and that even if no appointments were made, that did not preclude him from pursuing the unfair discrimination claim.

[9] The exception was raised on the grounds that the applicant had not alleged that after the interviews of 18 September 2012, another

candidate apart from him was appointed. It was further submitted that no appointments were made following these interviews, as issues surrounding the employment equity plan had not been addressed. To the extent that no appointments were made, it was contended that the applicant’s application was premature; that he had failed to make out a case for the relief that he seeks, and further that his statement of case lacked the averments which were necessary to sustain a cause of action.

[10] The applicants’ main response to the exception was that he stood by his versions in the statement of case, and insisted that he still placed reliance for the basis of his discrimination claim on the provisions of section 6 of the Employment Equity Act. He conceded that the employer has a prerogative as to whom to appoint and further that no appointments were made subsequent to the interviews conducted on 18 September 2012. He however contended that the reason behind the non-appointments had nothing to do with employment equity considerations, and that the respondents had yielded to the demands of Kagisano Molopo Community that a candidate from the area (a female) be appointed, which was subsequently done after the position was re-advertised.

[11] It is my view that the applicant’s statement of case fails to disclose a cause of action. The first observation to be made is that it was common cause that no appointment was made subsequent to the first round of interviews. There is no indication that the applicant had re-applied when the post was re-advertised for his averments in regards to the reason for his non-appointment to be sustainable.

[12] Secondly, the basis of the alleged discrimination according to the applicant was that the local community put pressure on the

respondents not to appoint him, as he was not from the area. The applicant has however not indicated in what material respects the respondents were placed under pressure by the local community in not appointing him. The correspondence the applicant sought to rely on[4] from the Acting District Executive Manager, LC Tire merely confirms that a compliant was received from the local community of Tlakgameng Village that potential appointees from the area were overlooked for positions. The full details of the complaint are unknown, and the correspondence from Tire does not in any manner state that the respondents were ‘under pressure’ or told in no uncertain terms that a local person should be appointed.

[13] Thirdly, a claim of unfair discrimination cannot be based on information obtained through the ‘grapevine’ and which

for all intents and purposes remains unsubstantiated. It is not sufficient for the applicant to simply make a statement that he was informed that his non-appointment was due to ‘political involvement’ of the local community. It cannot, even on a prima facie basis, be concluded that he was discriminated on the basis of his ‘origin’ simply on account of unsubstantiated claims of ‘pressure’ allegedly put on the respondents, which pressure or influence he has not made any attempts to substantiate.

[14] Fourthly, the applicant lamented the fact that the position was re-advertised without communicating or explaining the reasons behind his and other candidates’ non-appointment following the interviews conducted on 18 September 2012. Inasmuch as there may be merit in this complaint, in the same vein, the applicant had conceded that it was within the prerogative of the respondents to appoint whomsoever they wished to appoint.

[15] To the extent that none of the candidates interviewed in September 2012 were appointed, it follows further that there is merit in the respondents’ contention that the referral to the CCMA and ultimate filing of this statement of case was indeed premature. This is so in that, a complainant alleging unfair discrimination within the meaning of s 6(1) of the EEA, must establish that the

differential treatment complained of, amounts to discrimination that is unfair. In this case, no appointment was made after the interviews of September 2012 for the applicant to establish the basis of differential treatment. To the extent that no basis exists or was laid in respect of any deferential treatment that may allegedly have occurred, it follows that no cause of action sustainable under section 6 (1) of the Employment Equity Act has been established.

[16] Ordinarily, where an exception is upheld, the court may dismiss the main claim or alternatively afford the other party to the exception an opportunity to apply for leave to amend its statement of claim. In this case however, the applicant’s claim of unfair discrimination is in respect of the interviews conducted in September 2012, and there is no indication that he had applied after the position was re-advertised. In the light of the conclusions made, it therefore follows that on his own version, he has not made out a case of unfair discrimination, and no purpose would be served in even granting the option of affording him an opportunity to file leave to amend that statement. Furthermore, having taken into account the considerations of law and fairness, it is deemed not appropriate to make a cost order. Accordingly. The following order is made:

Order:

i. The exception that the Applicant have failed to make sufficient allegations to disclose a cause of action in terms of section 6 (1) of the Employment Equity Act is upheld.

ii. The Applicant’s main claim is dismissed.

iii. There is no order as to costs.

___________________

Tlhotlhalemaje, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. W Chisora of Jansens Attorneys

For the First Respondent: Adv. Mmolawa

Instructed by: State Attorney

[1] Charlton v Parliament of the RSA [2007] 10 BLLR 943 (LC).

[2] “6. Prohibition of unfair discrimination (1) 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”.

[2] “6. Prohibition of unfair discrimination

(1) 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”.

[3] (2002) 23 ILJ 2088 at paragraphs 18 – 20

[4] Vide Annexure “B” to the statement of case