Police and Prison Civil Rights Unions and Others v National Commissioner of South African Police Service (JS 136/16) [2022] ZALCJHB 73 (22 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JS 136/16

Not Reportable

In the matter between:

POLICE AND PRISON CIVIL

RIGHTS UNIONS

First Applicant

LUDAKA B AND OTHERS

Second to furtherApplicants

and

THE NATIONAL COMMISSIONER

OF THE SOUTH AFRICAN POLICE SERVICE

Respondent

Heard: 15 June 2021

Delivered: 22 March 2022

Judgment

Mabaso, AJ

Introduction

[1] The Police and Prison Civil Rights Union (the Applicant union) and Second to Further Applicants (the Individual Applicants) instituted a claim against the Respondent (the SAPS) seeking an order that the Respondent’s payment of Scarce Skill Allowance (the Allowance)

to some of its employees with the exclusion of the Individual Applicants be declared to be unfair discrimination on “arbitrary

grounds”, under the provisions of section 6(4) of the EEA.[1] Consequently, they pray that the SAPS be ordered to pay them the Allowance from the date of the disparity when they alleged became eligible.[2]

[2] The SAPS, in opposing this claim, is not disputing that there is a differential relating to certain Individual Applicants but denies both discrimination and unfairness thereof.

[3] Initially, the Applicants instituted this claim by way statement of case, resulting in the SAPS delivering a response. Following the conclusion of the pre-trial minutes, instead of tendering their respective oral evidence, all parties herein agreed that they were only to submit affidavits. Which they duly did. Traditionally, once pre-trial minutes have been delivered, a matter will be set down for viva voca evidence for parties to take the Court through documents exchanged between them. In this matter, parties resolved that this Court should decide the matter based on the pleadings, affidavits and exchanged documents. This means this Court will be limited on what is contained therein, being guided by what the SCA said in Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd 2011 (1) SA 8 (SCA), at para 19,[3] recently endorsed by the Constitutional Court in Mtolo and Another v Lombard and Others (CCT 269/21) [2021] ZACC 39, relating to the dispute of facts and probabilities.

Background and evidence

[4] In the pre-trial minutes, parties agree that the dispute relates to section 6(4) of the EEA, and that the main issue relates to the interpretation and application of letters and documents which they contend that such are reserved for legal argument as a result this Court has be urged to look at the documents then decide on them. Based on the nature of the claim, the Individual Applicants have the onus of proof, on balance of probabilities, that the non-payment of the Allowance to them was not rational and amounts to unfair discrimination. The Individual Applicants as they had an opportunity to deliver supporting affidavits after the SAPS had delivered the amended statement of defence, it was then expected that the Individual Applicants were to deliver detailed supporting

affidavit(s) in order for the SAPS to respond thereto, consequently, the Individual Applicants were not expected to only try to make out a case in their replying affidavit(s).

[5] In terms of the Practice Note delivered by the parties, on 16 April 2021, it was agreed inter alia that the following are common cause: that the Individual Applicants are additionally members of the SAPS as defined by section 1 of the South African Police Service Act 68 of 1995, that the First to Fourth Individual Applicants are employed within the Internal Audit Department of the SAPS; that Resolution 2 of 2004 was adopted by at the PSCBC on the improvement in salaries and other conditions of service wherein those employees performing scarce skills were to be paid an Allowance.

[6] It was further agreed that on or about November 2006, the payment of the Allowance for Certain Occupational Categories (COC) was approved for those who possess scarce skills and this was done by the then Minister of Safety and Security (the Minister) and was implemented within the SAPS for those employed in the Forensic Service Department (the FS Department). In addition to the latter category of employees, in June 2008 the Minister approved that those within the Internal Audit Department (the Audit Department) be also paid the Allowance. The parties further agree that “[the Allowance] of R1500 per month was payable to qualifying members who met the requirements for the scarce skill allowance”. Some employees received this payout, but others did not; those who were not being paid this amount included all the Individual Applicants at the time of declaring this dispute. This confirms the differential as stated above. The definition of differential means that an employer treats its employees differently or uses policies or practices that excludes certain employees.[4] Consequently, the immediate question is whether such differential amounts to discrimination or not?

[7] In June 2021, in the endeavour to further narrow down the issues, the parties filed further pre-trial minutes and agreed that the following are part of common cause facts.

[8] The Allowance was only payable to employees within the Departments that (a) had been designed as Scare Skill Environments and (b) who performed such Scare Skill Functions. The requirements, as per the initial circular, were thus: (i) entered into a contract of employment with the SAPS, (ii) if an employee has relevant qualification, such person must have at least three years’ service post qualification experience within the Department, (iii) in case such employee is not in possession of such qualification they must at least have five years’ service “within the employee category which possess scarce skills in order for the employee to acquire the necessary competencies”, (iv) parties agree further that if the relevant qualification is obtained “after three years’ service in the category which possess scarce skills but before he has required (5) five years’ service to qualify for the allowance, the employee may receive the allowance from the date of obtaining the qualification”, and (v) in the event that internal training is provided to an employee in order for them to perform the required duties within the “occupational” category then such will be recognized for the payment of the Allowance.

[9] The parties further agree that when the Initial Circular was released in November 2006, the Audit Department (the contested Department) had not been recognized as a scarce skill employee category. On or about 27 June 2008, the Minister designated the Audit Department as an employee category possessing scarce skills with effect from 01 July 2008, and stated the following “for approval”:(1) that the Audit Department be declared as an employee category which possesses scarce skills within the SAPS, (2) that the Allowance be paid to “Internal Auditors who have passed CIA,CCSA,CGAP of CFSA examinations and who meet the requirements for the payment of [the Allowance] as stipulated in circular 4/2/1 dated 13 November 2006 …”. Consequently, this now means in addition to the foregoing requirements (mentioned in the preceding paragraph), there is an additional requirement which applies to the Audit Department.

[10] In the pre-trial minutes, filed on 11 June 2021, it was agreed that this Court would have to determine whether the Individual Applicants meet the inherent requirements as set out in the circulars for the payment of the Allowance,[5] whether the additional requirements read exclusively and without the application of the initial circular were arbitrary and unjustified,[6] and whether the differential has the effect of exclusion of remaining Individual Applicants on arbitrary grounds.[7] These are the questions that have to be answered by the Individual Applicants as their claim is located in section 6(4) of the EEA.

The law and application thereof

[11] An employment policy or practice, including remuneration and employment benefits, that unfairly discriminates against employees generally is not allowed. Section 6(1) of the EEA, as amended by section 3 of the Employment Equity Amendment Act 47 of 2013, 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 or on any other arbitrary ground.” (Own emphasis)

[12] An employer who is faced with an accusation of unfair discrimination based on one of the specified grounds contained in section 6(1) of the EEA has several defences, which are an inherent requirement of a job, affirmative action[8] and/or fairness. However, if the ground is not specified, the employee has to show irrationality and unfair discrimination, as

section 6(11) of the EEA deals with onus of proof thus:

“11 Burden of proof

(1) If unfair discrimination is alleged on a ground listed in section (1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination-

(a) did not take place as alleged; or

(b) is rational and not unfair, or is otherwise justifiable.

(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that-

(a) the conduct complained of is not rational;

(b) the conduct complained of amounts to discrimination;

(c) the discrimination is unfair.”

[13] The Individual Applicants’ pleaded case[9] is specifically that they do the same work as those who are paid the Allowance, their reliance is positioned in section 6(4) of the EEA, which provides that:

“A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.” (own emphasis)

[14] Considering the provisions of this section indicates that such disparities must be based on any of the grounds mentioned in section 6(1) of the EEA. In this matter, in their statement of case, the Individual Applicants have not specifically pleaded any of the listed grounds, which would have allowed the SAPS to raise any defense as stated above. The contention raised is arbitrary ground. This Court has to be guided by what the LAC said, said in Mahlangu v Samancor Chrome Ltd (Eastern Chrome Mines) & Others(2020) 41 ILJ 1910 (LAC) as it held thus, relating to inquiry in matters of this nature where is not in dispute that there is differential:

“[18] In Harksen v Lane NO & others, It was stated that to determine whether differentiation amounts to unfair discrimination requires a two-stage analysis:

‘(i) Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to “discrimination”, does it amount to “unfair discrimination”? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.” (Own emphasis)

[15] The LAC discussed the applicable principles in matters of this nature, where the claim relates to “any other arbitrary ground”, in the matter of Naidoo & Others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC) at paras 14, 27, and 28, this matter has been succinctly put and applied by the same Court, in Minister of Justice & Correctional Services & Others v Ramaila & Others (2021) 42 ILJ 339 (LAC)[10], where that Court thus:

“This Court has recently in Naidoo & others v Parliament of the Republic of SA comprehensively dealt with the construction to be placed on the phrase “any other arbitrary ground” as set out in 6(1) of the EEA. The fundamental question before the Court in Naidoo was whether a “narrow” or a “broad” interpretation of the compass of the phrase “any other arbitrary ground” should prevail. The distinction suggested, on the one hand, that the compass is limited to a ground which is analogous to the listed grounds, and on the other, posited conduct required to be arbitrary, in the sense of being “capricious”.

This Court, after a careful examination of the jurisprudence of the Constitutional Court decisions of this Court and the Labour Court and some academic writings, endorsed a narrow compass interpretation thereof. It held that the expression was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s 6.”[11]

[16] Following the agreement between the parties that affidavits were to be submitted instead of presenting viva voca evidence, one of the Individual Applicants, specifically Ms Ludaka, delivered an affidavit that did not deal in details about the merits of their alleged discrimination but dealt with what transpired following the lodgement of this matter, specifically payments that were made to some of them by the SAPS. This was despite the SAPS delivering the Amended Statement of Defence wherein inter alia stated that in both Audit and Forensic Departments, “a qualification is a prerequisite in order to be eligible for the [the Allowance]”.[12]In return, the SAPS delivered their affidavits, and one of them was deposed to by Mr David Griesel (Mr Griesel).

[17] Mr Griesel is employed by the SAPS, tasked with developing compensation policies for the whole of the SAPS. He explains the process that is followed in developing a policy in this regard and states that the scarce skills policy are applicable within the SAPS only. The Allowance payment is a short-term measure to address the challenges of retaining employees short-term whilst they are developing further measures of skills retention within the SAPS.[13] He states that the rationale for implementing the skill policy was that the SAPS was losing scarce skills employees to both the private sector and other government departments.[14] He explains the model or method used to design and develop this scarce skills policy and guidelines. He contends that they identified the needs for the job which is in high demand and “not readily available” within the SAPS, but it is necessary for a proper functioning of the service.[15]

[18] He further states that initially when the first cercular was developed the divisions within the SAPS were invited among others the Audit Department, whereby the latter made submissions; however, later withdrew same, and whether or not they were included in the initial list of the division that the Minister subsequently approved. He explains which divisions within the SAPS were subsequently eligible for the Allowance. And conspicuously, he states that qualifying employees within those categories were still required to apply to receive the Allowance in accordance with the criteria set. He emphatically indicates that the Audit Department was not part of the initial schedule; therefore, its employees were not eligible to receive the Allowance. He further indicates that later it was investigated what skills were considered scarce in the occupational category and the Audit Department. According to them, it was determined that skills with reference to the above as an additional requirement. Following further submissions, it was concluded that certain employees within the Audit Department were classified as having sufficient skills. Specifies the requirements that each employee must have in order to qualify for the allowance.

[19] Mr Griessel further states that one of the requirements to qualify was a qualification (which was an additional eligibility requirement), Ms Ludaka states that Mr Griessel's interpretation of the added requirements is incorrect. I have considered these added requirements, and I do not see where Ms Ludaka gets her interpretation because the added requirements are clear as Mr Griessel has explained it. In addition to the above, he indicates that certain requirements at some stage were relaxed, and the Minister and scare skills approved this as a result of the recommendation that was made to the Minister for the approval to include the Audit Department. He states that even after the relaxation, some employees within the Audit Department still did not qualify to receive the Allowance because they still did not meet the eligibility requirements. His affidavit elucidates why some of the employees were later paid the Allowance.[16]Furthermore, it deals with the relaxation of the eligibility requirements and additional eligibility requirements in the Audit Department, as I have clarified in this paragraph that I accept the understanding of Mr Creissel ,as a correct one.[17]

[20] An affidavit by Mr Charity Matlou of the SAPS, also filed, states inter alia thus as to what happened following the lodgment of the dispute by the Applicants, as she says indeed Ms Ludaka was paid the Allowance for the period January to October 2019 but denies that there is any outstanding amount as he avers that the relaxation of the requirements for eligibility for the Allowance in the Audit Department was made in September 2012 and the Ms Ludaka did not apply

then as she only did so in August 2019. She further states that Ms Ludaka “without the postgraduate requirements that specified in the 2008 document, and then 2012, she was not eligible for the payment of [the Allowance]”. Relating to the interest claimed,

she states that Ms Ludaka has not shown the circumstances that would have warranted the payment of such interest. The Individual

Applicants do not dispute this point, and I accept the SAPS point as the Individual Applicants in their founding papers (statement of case and Ms Ludaka’s affidavit have not presented a case that supports the payment of interest).

[21] Since the claim has been raised by the Individual Applicants that the discrimination is on an arbitrary ground, therefore, as indicated above, the burden of proof was on them to show that the conduct complaint is not rational, that it amounts to discrimination, and that such is unfair. And since the differential is not in dispute, what was required in this matter is to apply an objective inquiry. Cf, Tshwane University of Technology v Maraba & Others (2021) 42 ILJ 1707 (LAC) at paras 14 and 17. Considering the provisions of sections 6(4) and (1) of the EEA, which the Individual Applicants rely on, that arbitrary ground is not a stand-alone as espoused in the Naidoo and Ramaila supra, I am not satisfied that the Individual Applicants have presented a case in support of their claim, instead the SAPS through the affidavits qualifies rationale behind the payment of the Allowance and being supported by what they say is additional eligibility and relaxation requirements. As the LAC in the matter of Ramaila supra concluded thus:

“ …is not surprising that the impugned instruments brought about a considerable degree of despondency because it resulted in pay disparity between Mr Ramaila and his comparators. This notwithstanding, as this Court observed in Naidoo supra, not all wrongful conduct is justiciable under s 6(1) of the EEA because there is no self-standing ground of arbitrariness or capriciousness.

In summary, whatever the possible adverse consequences caused by the pay progression system, these consequences did not constitute

discrimination of a kind that could justify a claim in terms of s6 of the EEA.”

[22] Therefore, arbitrariness alone in this matter does not assist the Individual Applicants case, considering that their pleaded claim is section (6)(4) of the EEA. What mostly works against the Individual Applicants is the explanation that has been provided by the SAPS through the affidavits as to what resulted to the subsequent payment of the Allowance to some of the Individual Applicants and that the intention of introducing the Allowance was to a recruit and keep the necessary scarce skills within the SAPS instead of them being lost to the private sector and other government departments. Consequently, it indicates that there was a justifiability as to why such was done; resultantly, the claim relating to unfair discrimination by the Individual Applicants cannot succeed.

[23] As indicated that after the declaration of the dispute, some of the Individual Applicants were henceforth paid the Allowance, in terms of paragraph 6.2.3 of the joint practice notice delivered on 11 of June 2021, it is contended that the further relief sought by the Individual Applicants is that the second to tenth applicants be paid interest for the outstanding payments from the date of non-payment of each the latter Applicants. As I have indicated, the claim for unfair discrimination does not succeed, and it is common cause that some of them were paid the Allowance following the adjustment of the requirements. What is essential in respect of the pre-trial minutes of 11 June 2021 is that parties agreed that the Sixth, Eighth, ninth and tenth Applicants have been subsequently paid the allowance retrospectively but was made without a tender for interest and legal costs allegegly incurred by these Employees. However, it was up to those paid to show in the founding papers that they were entitled to the interest. I concur with the SAPS that those Applicants have not presented a case that supports their belated relief (as prayed in the affidavits).

[24] Relating to legal costs, this is a matter that involves employment equity and equality which I must admit that an important question of law is dealt with, considering the judgments of this court and that of the LAC, which mostly deals with this issue. The issues of cost relating to employment equity lie with this Court to determine whether it should make a cost order or not. I have considered the papers before me, and I am not satisfied that there is a justification for the cost order to be made against any of the parties.

[25] For these reasons, the following order is made:

Order

1. The applicants’ claim of unfair discrimination is dismissed.

2. The applicants' claim of the payment of interest is dismissed.

3. Each party bears their own cost.

Sandile Mabaso

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicants:

Adv K A Wilson

Instructed by:

Weavind & Weavind Inc

For the Respondent:

Advocates N Muvangua and L Makapela

Instructed by:

The State Attorney

[1] Read with ss 6(1) of the Employment Equity Act (the EEA)

[2] Statement of case, p 13.

[3] “[I]n Truth Verification Testing Centre CC v PSE Truth Detection CC 1998 (2) SA 689 (W) Eloff AJ stated at 698H-J: ‘I am also mindful of the fact that the so-called “robust, common-sense approach” which was adopted in cases such as

Soffiantini v Mould 1956 (4) SA 150 (E) in relation to the resolution of disputed issues on paper usually relates to a situation where a respondent contents himself with bald and hollow denials of factual matter confronting him. There is, however, no reason in logic why it should not be applied in assessing a detailed version which is wholly fanciful and untenable.’

[3] “[I]n Truth Verification Testing Centre CC v PSE Truth Detection CC 1998 (2) SA 689 (W) Eloff AJ stated at 698H-J:

‘I am also mindful of the fact that the so-called “robust, common-sense approach” which was adopted in cases such as

Soffiantini v Mould 1956 (4) SA 150 (E) in relation to the resolution of disputed issues on paper usually relates to a situation where a respondent contents himself with bald and hollow denials of factual matter confronting him. There is, however, no reason in logic why it should not be applied in assessing a detailed version which is wholly fanciful and untenable.’

[4] Essential Employment Discrimination Law, Juta Law, 2010, at p 33.

[5] Pre-trial Minutes, Para 7.1.

[6] Pre-trial Minutes, Para 7.8.

[7] Pre-trial Minutes, Para 7.10.

[8] S 6(2)(a) of the EEA.

[9] Paras 4.24-25 of the Referral.

[10] Also available on www.saflii.org.za.

[11] Ibid, at para 24.

[12] Para 7.4.

[13] Para 19.

[14] Para 21.

[15] Para 23

[16] Para 43-7

[17] Para 51 – 54.2