Solidarity obo Van Rooyen and 6 Others v South African Police Service and 5 Others (JS105/17) [2021] ZALCJHB 463 (26 February 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JS105/17

In the matter between:

SOLIDARITY OBO VAN ROOYEN

AND 6 OTHERS

Applicants

and

SOUTH AFRICAN POLICE SERVICES

AND 5 OTHERS

Respondents

Heard: 15-16 February 2021

Delivered: 26 February 2021

Summary: A claim alleging unfair discrimination – the employer conducted a mass promotion following the prescripts of a collective agreement concluded in the bargaining council. Applicants alleging that the representivity criterion set in the collective agreement contravenes the provisions of the Employment Equity Act, Act No. 55 of 1998 (EEA), in particular section 15 thereof. In applying the criterion of representivity the employer discriminated the members of Solidarity unfairly. Where an employer applies a criterion agreed upon for a once off mass promotion in a collective agreement, there is no room for unfairness. The collective agreement was not set aside by the Court. The provisions of section 15 of the EEA do not find application in this instance. Held: (1) The applicants’ claim is dismissed. (2) There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is a referral in terms of rule 6 of the Rules for the conduct of proceedings in the Labour Court. The applicants in their statement of case sought the following reliefs; (a) that the South African Police Services (SAPS) unfairly discriminated against A Van Rooyen; PG Conradie; C Dreyer; A Heeraman; A De Graaf (now deceased); P Claassen; and M Nagel (now deceased) (the members) on the grounds of race and/or gender; (b) reviewing and setting aside, as unlawful, the decision of the SAPS to refuse to promote the individual applicants (the members) to the positions or posts; (c) an order directing the SAPS to appoint the members to the ranks of captain and major respectively effective 1 April 2013 or alternatively treat them in so far as title, remuneration and benefits are concerned as if they had been promoted; (d) in the further alternative order payment of compensation. The applicants led no evidence in support of any of their reliefs set out above.

[2] In terms of section 11 of the Employment Equity Act[1] (EEA) if unfair discrimination is alleged on a ground listed in section 6 (1) the employer, in this case the SAPS, 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.

[3] In discharging its burden within the contemplation of section 11, the SAPS led the

evidence of Brigadier Kemp. I must point out upfront that there was no other countervailing testimony that was placed before this Court. It suffices also to point out at this stage that in as far as the review and setting aside of the alleged unlawful decision, the applicants bore the onus and did not lead any evidence to support the remedy of review.

[4] Later, I shall be granting an absolution from the instance of review sought simply on the basis of lack of prima facie evidence. Therefore, to a large degree, this judgment shall deal with the claim of alleged unfair discrimination on the grounds of race or gender. It also suffices to point out upfront that in such a claim, an employer is availed with a statutory defence; namely (a) the alleged discrimination did not take place; (b) the discrimination is rational, fair or justifiable. Thus, if an employer proves on the balance of probabilities that a discrimination is either rational; fair or justifiable, then such an employer is not guilty of the prohibited discrimination.

[5] Therefore, in this judgment the conduct of the SAPS shall be judged on either of the

following basis; (a) rationality; (b) fairness; or (c) justifiability. If the evidence show any of the above basis, the SAPS would have discharged its burden on a preponderance of probabilities.

Background facts and evidence

[6] Two of the members passed on and the estates of the two deceased members did not substitute them, thus they are no longer participants in this matter. Although it is alleged that the SAPS failed to promote the members in April 2013, this matter has an elongated history. The onset of this matter is the coming into being of a collective agreement concluded in the Safety and Security Sectoral Bargaining Council (SSSBC) on 5 April 2011. In terms of that collective agreement, owing to the introduction of the new rank structure effective 1 April 2010, ranks of Lieutenant and Major were introduced, which required to be populated. The parties to a collective agreement agreed amongst other things to embark in a once-off promotion process in the 2011/12 and 2012/13 financial years.

[7] They also agreed that that once-off promotion process will be informed by the criteria

set-out in the collective agreement. Relevant to the current matter is the application of the criterion of representivity. The parties had set out seven criteria for the promotion from Warrant Officer (WO) to Captain and from WO to Lieutenant; namely (a) representivity; (b) qualifications; (c) seniority; (d) uninterrupted service; (e) performance; (f) suitability; and (g) transferability.

The promotion process was conducted in two phases. This matter concerns the second phase part.

[8] Whilst the second phase was on course, the trade union launched an application seeking to set the collective agreement aside on the basis that same is unlawful and effectively to halt the continuation of the second phase. The application served before my brother Tlhotlhalemaje J, who at the relevant time was an acting justice of this Court. On 2 April 2015, my brother issued a judgment in terms of which the application was dismissed and he made findings that the collective agreement was lawful since the trade union sought to impugn it. This judgment was not overturned on appeal.

[9] In the course, the trade union had launched another application seeking to challenge the validity of an Employment Equity Plan (EEP) for the period 1 January 2010 until 31 December 2014. On 26 January 2016 in a rather lengthy, seminal and extensive judgment, my brother Lagrange J declared the EEP to be invalid in that it contravened sections 15 (3) and 42 of the EEA as well as section 9 (2) of the Constitution of the Republic of South Africa, 1996 (the Constitution).

[10] In the meanwhile, certain promotions were made which were to take effect on 1 April 2013. The

members discovered on different dates that they were not promoted. They also on different dates lodged grievances grieving about

discrimination. They could not get satisfaction from their respective grievances. Ultimately during February 2017 the present referral was made, which is opposed by the SAPS.

Brigadier GJ Kemp

[11] He was the solitary witness who testified before Court. He holds a rank of a brigadier and employed

by the SAPS as a Section Head: Senior Management and Personnel Management in the Human Resources Department, located at the head

office of the SAPS. Promotions of employees at the SAPS fell under his responsibility. He held this position since 1 January 2016. He testified about the process that was followed to undertake the agreed once-off mass promotions. Relevant information was drawn using two computer systems; namely persal and persap. About 40 000 employees of the SAPS met the minimum criteria for promotion. There were about 1300 vacancies to be inhabited.

[12] With regard to the relevant criterion in this matter, that of representivity, he testified that the employment equity department was tasked to produce guidelines as contemplated in the collective agreement. They produced a document with guidelines which was shared with the labour movement. The department used the 2010-2014 EEP and the 2006 national population censorship results in order set the targets since the agreement was silent on the numerical targets. Given that it was a once-off promotion process, it made sense to use national demographics as opposed to regional demographics in order to set the numerical targets. Regional demographics would have produced skewed results which will render the terms of the collective agreement unimplementable.

[13] Given the prevailing circumstances, some flexibility took place in the implementation process. Everything that was done was done in line with the collective agreement, he testified. He also testified that where the collective agreement makes reference to the “representivity guidelines”, it refers to a document that was generated by the employment equity department. I pause to mention that such a document was not placed before Court nor was it called for by the members’ counsel. No work analysis, according to his knowledge, since he was not involved, were used in the process of setting the numerical targets. He made a number of suppositions that had any of the members met the criteria of representivity as set out in the collective agreement they may have been promoted.

Evaluation

The review and setting aside of the decision to refuse to promote the members

[14] This Court is empowered by section 158 (1) (h) to review any decision taken or any act performed by the State in its capacity as an employer, on such grounds as are permissible in law. It has now been resolved that there are two judicial review pathways in this country. The first of which is the constitutional principle of legality/rationality. The second of which is the PAJA review which stems from section 33 of the Constitution.

[15] Ordinarily review applications are launched in this Court and many other Courts by way of motion

proceedings. If motion proceedings are chosen, affidavits are filed, which are to serve two purposes; namely (1) as a pleading and (2) as evidence. Thus a Court reaches its conclusion by having regard to the affidavits. Of course a party is not prevented from proceeding by way of an action in order to obtain the remedy of review. In this Court, action proceedings are commenced by a statement of case, which only serve as a pleading. Once pleadings are closed, a party will obtain a remedy after the leading of evidence unless the parties agree on a stated case as legally defined[2]. In casu, the applicants chose action proceedings to pursue the remedy of review but failed to lead any evidence in support of the remedy. In the absence of a prima facie case, the other party to litigation, in this instance the SAPS, is entitled to an absolution from the instance[3]. The applicants closed their case without leading any evidence, and such implies that no order can be made. Accordingly, the SAPS is absolved from the review instance.

The case of unfair discrimination.

[16] The only case remaining for the applicants is that of alleged unfair discrimination. There are a number of difficulties pertaining to this case. I shall only deal with one such difficulty. The applicants failed to produce any credible evidence upon which a conclusion can be reached that discrimination has taken effect[4]. Discrimination in simple terms means differentiation. This case is about not being promoted. It is not a type of promotion where an employee applied for a vacant promotional post and was not promoted. Such instances are normally regulated by section 186 (2) of the LRA. The members in this matter did not apply for promotion and were denied promotion.

[17] By mere fact that a person is not promoted it does not axiomatically follow that such an employee has been unfairly discriminated. In this case, the members allege that they were discriminated on the grounds of race and gender. Having made an allegation that discrimination has happened does not mean that a party must not factually establish that discrimination has happened. In my view, the allegation must be supported by some credible evidence that establishes firstly that discrimination as a fact has happened. It is for that reason that section 11 (1) (a) of the EEA avails to an employer the defence of unfair discrimination

not having taken place. Otherwise if there is no credible evidence to show that discrimination on one of the grounds has happened how would an employer discharge the burden of proving that the unfair discrimination did not take place.

[18] The burden that the SAPS has is to prove that the unfair discrimination as alleged did not take place. To my mind an employee can allege unfair discrimination on any of the prohibited grounds in a pleading and if the alleged unfair discrimination is factually admitted, then an employer must raise a defence in section 11 (1) (b) in order not to be found guilty of unfair discrimination. In such an instance there is no obligation on the part of an employee to produce credible evidence to show that unfair discrimination indeed took place. The presence of such credible evidence shall exalt, as I pointed out above, an employer to discharge the burden of proof to show that the unfair discrimination has not happened. This Court thoroughly scoured through the pleadings but could not find an admission that race or gender discrimination took place. What the Court could find is an admission that section 15 of the EEA places certain legal obligations and the SAPS complied with those legal obligations.

[19] In due course I shall deal with the question whether section 15 of the EEA finds application to this dispute or not. If the above revelation is taken into account, it could be assumed that the SAPS admitted that discrimination happened. In terms of section 6 (2) of the EEA, it is not unfair discrimination to take affirmative action measures consistent with the purpose of the EEA. This section to my mind addresses an instance where an employer takes affirmative action measures which meet the purpose of the EEA. In terms of section 15 (1) affirmative action measures means measures that are firstly designed with a purpose to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational levels in the workforce of a designated employer.

[20] It is important to observe at this stage that these measures should be ones that are geared towards

suitably qualified people. Section 1 of the EEA defines suitably qualified person as a person contemplated in section 20 (3) and (4) of the EEA. These suitably qualified people must be from a designated group. Section 1 defines designated groups to be black people, women and people with disability. As pointed out above, I shall in due course return to the question of the applicability of section 15 in this instance. Despite the concession by the SAPS that it applied the measures contemplated in section 15, this Court is not satisfied that the applicants satisfied the requirements of adducing credible evidence to show that unfair discrimination did take place. The common cause facts that the SAPS promoted candidates from other races with less years of service and that the members were not promoted because of lesser number of posts within their race and gender groups does not assist the applicants in this regard.

The burden of proof

[21] The applicants took an approach that section 11 is their panacea in this case. That approach is oblivious of the nature of the burden carried by an employer. As discussed above, in my view, once credible evidence is led then this Court would establish whether the burden has been discharged. There is a difference between the burden of proof and the evidentiary burden. Evidentiary burden means an obligation to show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue. The fact in issue here is unfair discrimination. The applicants had the evidentiary burden to show that unfair discrimination as a fact existed and they failed to do that before me. On the other hand a burden of proof is a legal duty to establish the truthfulness of facts in a trial.

[22] In terms of section 11, an employer does not carry a general and overall burden of proof in unfair

discrimination cases but carries a specific burden, which is that (a) the unfair discrimination as alleged did not take place, (b) if it did, it is rational, fair and justifiable. Grammatically, the phrase “take place” generally means happen. The meaning of the word “happen” is to take place. The emphasis in section 11 (1) (a) is “did not”. This is an expression of negation as opposed to positivity. In order to negate there must exist a positive fact. As indicated above, an employer cannot be called to negate when there is no fact to negate. The evidence of Brigadier Kemp was more focused on the collective agreement than anything else. It cannot be argued that his testimony also discharged the evidentiary burden of the applicants – to prove existence of unfair discrimination as a fact. As indicated above, a statement of case serve as a pleading and not evidence. The applicants were behoved to still present credible evidence to show that unfair discrimination as a fact happened[5]. No scintilla of evidence was led in this regard[6].

[23] Thus I take a view that the SAPS was not legally obligated to show that unfair discrimination as a fact did not happen because there was no establishment of that fact before me.

[24] However, in the context of reliance on section 15, this Court must come to the conclusion that the SAPS failed to show that discrimination as alleged – that is on the ground of race and gender did not happen. In other words it did happen. That of course is not the end of the journey. It is an either or situation. If an employee successfully shows that discrimination happened, there is no need for the either or.

[25] In the sub-paragraph (b) situation emerges three defences. Those are (a) rationality; (b) fairness; and (c) justifiability. Again the section presents an either or situation. Rationality travels together with fairness. The legislature suggests that if the differentiation is rational then it is not unfair. Something is said to be rational if it is consistent with or based on reason or good judgment; logical and sensible. Justifiability is on its own. Something is said to be justifiable when it has sufficient grounds for justification or capable of being justified or understandable.

[26] I do, without hesitation, conclude that on the uncontroverted evidence of the SAPS the promotions were effected in a rational and/or justifiable manner and it is not unfair discrimination.

[27] Before I conclude I need to visit the provisions of section 6 (1) of the EEA. The subsection refers to a discrimination in any employment practice or policy. Section 1 defines what an employment policy or practice is. The very first of which is recruitment procedures, advertising and selection criteria. Mr Groenewald appearing for the applicants quibbled with a suggestion that the collective agreement of 2011 is also an employment policy of practice. I fail to understand this quibble. The collective agreement provides for selection criteria for promotion. Mr Bruinders appearing for the SAPS did not offer any resistance to the suggestion. The conclusion I reach is that the collective agreement of 2011 is an employment policy or practice. Therefore whatever criteria it propagates must not be in conflict with the prohibition in section 6 (1) of the EEA.

[28] The criterion of representivity is defined in the collective agreement to mean the representivity guidelines and number of posts be the baseline for the filling of the posts provided that in case of the same race group, only male members may supplement the shortfall of female members. As pointed out above, this Court was not favoured with the representivity guidelines contained in a document testified to by Brigadier Kemp. It is not contested by Kemp that the guidelines were informed by the 2010-2014 EEP and the 2006 national demographic censors. Mr Groenewald argued that then the representivity guideline is the EEP of 2010-2014. This submission is at odds with the uncontroverted and unchallenged evidence of Brigadier Kemp. Withal section 20 suggests that an EEP is a document prepared which will, as in the future, achieve reasonable progress towards employment equity in the employer’s workforce. The document testified to by Brigadier Kemp was not aimed at the future but was aimed at the situation which was prevalent at the time – once-off mass promotions.

[29] In pursuit of that narrative, Mr Groenewald developed an argument that since this Court per Lagrange J had set aside the EEP of 2010-2014, it follows axiomatically that the representivity guidelines whatever they are, are also unlawful. I disagree with this submission. This Court cannot conclude without having seen the representivity guidelines that they were unlawful or for that matter innately unfair in their operation or implement. The applicants should have called for those representivity guidelines because that would have firstly demonstrated that they perpetuate discrimination let alone a fair or an unfair one.

[30] Withal, according to the collective agreement those representivity guidelines will form a baseline

provided that in the case of the same race group only males will supplement females. For an example if a post requires white females

given the numerical goals/targets, if there are no sufficient white females, the shortfall can only be supplemented by white males as opposed to black, Indian or coloured males. Applying the normal rules of construction, that situation can only arise if a particular event has happened – shortage of females in a particular race group. There is no evidence that such had happened and had happened in an irrational, unfair or unjustified manner. The uncontroverted testimony of Brigadier Kemp is that the manner in which the promotions were effected in terms of the representivity guidelines was justifiable, rational and fair.

[31] As an alternative argument, Mr Groenewald argued that since there was no EEP in place at the relevant time, then the affirmative action measures cannot be implemented. He based his argument on the provisions of section 20 (2) (b) of the EEA. In terms thereof, the EEP must state the affirmative action measures for each year of the plan. Placing huge reliance on the decision of SAPS v Solidarity obo Barnard[7] he submitted, correctly so, that affirmative action measures must be taken in accordance with the plan. This is in line with section 20 (2) (b). I shall return to this argument when I consider whether section 15 of the EEA finds application in this instance. Another

argument developed by Mr Groenewald was that since the SAPS used only national demographic figures it contravened section 42 of the EEA and as held in Solidarity and Others v Department of Correctional Services and others[8] such an unlawful act must lead to a similar conclusion arrived at in that case.

[32] Mr Bruinders in retort submitted that on his interpretation of section 42, the section did not apply in the instance in which the SAPS was involved in pertaining to this matter. In using the national censorship results

of 2006, the SAPS was not setting affirmative action measures in a manner of seeking to reverse the sins of the past. It used that for the purposes of creating representivity guidelines as required by the collective agreement. He submitted that the Department of Correctional Services (DCS) case was dealing with the validity of an EEP when it considered the provisions of section 42. This is correct. At paragraph 71 of the judgment, Zondo J, as he then was, writing for the majority, stated the following:

“[71] Section 42 applies when …seeks to determine whether a designated employer is implementing employment equity in accordance with [the EE Act]…It is to be noted that this provision does not directly refer to the implementation of an employment equity plan but simply to “implementing employment equity”. However, the matter was argued on the basis that the implementation of employment equity means the same thing as the implementation of an employment equity plan where there is one. For the purposes of this matter I shall deal with section 42 on this basis as well.

[33] In casu the SAPS was not implementing an employment equity plan when it used the national demographics but was setting guidelines for representivity as required by the collective agreement. Therefore section 42 does not find application in this instance.

Does section 15 find application in this matter?

[34] The applicants alleged in their papers that the SAPS contravened section 15 (3) and (4) of the EEA in that the measures implemented amounted to a quota system and an absolute barrier. Section 15 (3) provides that the measures referred to in subsection 2 (d) include preferential treatment and numerical goal but exclude quotas. Section 15 (4) provides that subject to section 42, nothing in this section requires a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups.

[35] It appears to be the challenge by the applicants that the collective agreement introduced

quotas. There are two principal difficulties with this challenge. The first of which is predicated on the cardinal principle of the law, which is that he who alleges must prove.[9] As a matter of law in order to satisfy the burden of proof the party with that burden must prove the alleged fact on a balance of probabilities. The applicants alleged that the SAPS introduced quotas, thus they bore the burden to prove that allegation. They led no evidence before me. The second of which is predicated on yet another cardinal principle of law res judicata.

[36] Prior to coming to this Court by way of a referral, the trade union attempted to challenge the legality of the collective agreement on the same basis that it introduces quotas. In a written judgment Tlhotlhalemaje AJ in the matter of Solidarity and Others v SAPS and Others[10], reached the following conclusions:

“[56] The first and third respondents denied that the scheme was based on a quota, contending that the population of the ranks was informed by the Agreement, which set out seven criteria in its Annexure B. In regards to the criteria of ‘representivity’, no percentages or numbers were used or taken into account, and for the rational implementation of the process, the number of posts available (5 209), had to constitute the baseline for the filling of those posts.

[57] I am in agreement with the contentions made on behalf of the respondents that the Agreement cannot propagate the use of quotas as alleged, for the simple reason that the numerical goals set out in the Plan were as a result of an agreement between POPCRU, SAPU and SAPS at the level of the SSBC. The fact that Solidarity was not party to the setting of these numerical goals does not turn them into quotas.’

[37] The above finding deals in exact picture with the similar contentions made before me, involving

the same parties and the same collective agreement. Accordingly, the principle of res judicata as predicated on the principle of finality of disputes, applies in this instance.

[38] Having said that, I hold a view that section 15 does not actually find application in this

matter. Section 6 (2) (a) suggests that where an employer takes affirmative action measures consistent with the purpose of the EEA, such an employer is not acting unfairly. Section 2 of the EEA provides that the purpose of the EEA is to achieve equity in the workplace by (a) promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and (b) implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure equitable representation in all occupational levels in the workforce. What subsection 6 (2) requires is an affirmative action measure that is consistent with the purpose of the EEA. Tlhotlhalemaje AJ has already found that the collective agreement is an affirmative action measure[11].

[39] Thus it cannot be so that in the absence of an EEP there can be no affirmative action measures

that can be implemented. Section 20 (1) (b) requires a stating of affirmative action measures as set out in section 15 (2). In this matter, the affirmative action measures implemented were not set out in an EEP and certainly not the one stipulated in section 15 (2) as uncontrovertibly testified by Brigadier Kemp. What section 15 does is to regulate the legal validity of an affirmative action measure. It ought to be remembered that application of affirmative action measures serves as a shield for an employer[12]. In the case before me the SAPS uses the collective agreement as a shield, since it contains affirmative action measures that are

consistent with the purpose of the EEA.

[40] Undoubtedly when the SAPS took an affirmative action measure through the collective agreement,

it was exercising public power which is a reviewable act on application of the principle of legality. As pointed out above a foiled attempt was made to challenge the legality of these agreed upon affirmative action measures. Therefore, at this stage section 15

finds no application in the proceedings before me. The relevant question before me is whether the affirmative action measures contained in the collective agreement are consistent with the purpose of the EEA. The test to determine consistency with the ultimate

purpose was laid down in Minister of Finance and another v Van Heerden[13]. The collective agreement as an affirmative action measure has already been subjected to the test laid down in Van Heerden by Tlhotlhalemaje AJ[14].

[41] Ultimately, I reach a conclusion that once section 6 (2) (a) of the EEA is shown, as it was shown in this matter by the SAPS, there can be no case for unfair discrimination. Such an enquiry ends there and section 15 can only be flagged when the validity and legality of the measures taken in terms of section 6 (2) (a) are attacked.

The validity of a collective agreement.

[42] Tlhotlhalemaje AJ upheld the validity of the collective agreement on the basis that it does constitute an affirmative action measure. During argument, I raised with the parties the issue which was not necessarily considered by Tlhotlhalemaje AJ, which relates to the provisions of section 23 (d) of the LRA. I agree with Tlhotlhalemaje AJ, as he then was, that the collective agreement contained affirmative action measures. To the extent that the members are suggesting that those measures are in any event not binding on them, then the provisions of section 23 of the LRA becomes critically important. I take a view that an employee can successfully challenge the validity of affirmative action measures set out in a collective agreement, which is the case in this matter, on the basis that the collective agreement is itself unlawful. Collective agreements gain legal force and effect from section 23 and 31 of the LRA.

[43] If the provisions of section 23 (d) of the LRA are ignored, the trade union could have raised a challenge that the measures contained in the collective agreement are not binding on them and their members. Not that this challenge could have changed the taking of the affirmative action measures by the SAPS per se, but such may have had some legal implications on the exercise of public power – the taking of the affirmative action itself which is grounded in a collective agreement. Section 23 (d) provides that the terms of the collective agreement binds the members if (a) they are identified in the agreement; (b) the agreement expressly binds them; and (c) it was entered into by the majority trade union in the workplace. The Constitutional Court in AMCU and others v Chamber of Mines of SA[15], concluded that section 23 (d) of the LRA is constitutionally valid.

[44] The Constitutional Court also concluded that invoking section 23 (d) of the LRA constitutes an exercise of public power and can be challenged on the principle of legality. The conclusion I reach is that there is no challenge of exercise of public power that sat before this Court.

[45] For all the above reasons, I conclude that the applicants are not entitled to an order of review and that they failed to produce

credible evidence that supports an existence of unfair discrimination as a fact. That notwithstanding in terms of section 6 (2) of the EEA, when the SAPS took affirmative action measures set out in the collective agreement it did not commit an unfair discrimination. The applicants failed to discharge its burden to prove that the provisions of section 15 (3) and (4) were contravened, thus the

applicability of section 15 has not been shown. The issue of the legal validity of the collective agreement has since become res judicata. Accordingly, the claim of unfair discrimination fall to be dismissed in its entirety.

[46] In the results, the following order is made:

Order

1. The applicant’s referral is dismissed in its entirety.

2. There is no order as to costs.

_______________________

GN Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant : Mr D Groenewald

Instructed by

: Serfontein Viljoen & Swart, Brooklyn.

For the Respondent : Mr V Bruinders

Instructed by

: State Attorney Pretoria.

[1] Act 55 of 1998.

[2] See: Arends and others v SALGBC and others [2015] 1 BLLR 23 (LAC).

[3] See: Gordon Llyod Association v Riviera and another 2001 (1) SA 88 (SCA) at 92E-93A.

[4] See: Tshivhase-Phendla v University of Venda [2017] ZALCJHB 491, where it was said: “To my mind section 11 still requires an applicant to produce some facts to prove that unfair discrimination has taken place…Such implies that there must be evidence to support the allegation that not only did discrimination in the ordinary sense take place that an unfair discrimination has taken place.”

[5] See Kroukam v SA Airlink (Pty) Ltd [2005] ILJ 2153 (LAC)

[6] See Numsa obo members v Aveng Trident Steel (Pty) Ltd [2018] 39 ILJ 1625 (LC) at paras 64-65

[7] [2014] 11 BLLR 1025 (CC)

[8] [2016] 10 BLLR 959 (CC)

[9] Semper necessitas probanda incumbit ei qui agit- the necessity of proof always lie with the person who lays charges.

[10] [2015] 7 BLLR 708 (LC)

[11] Ibid at paragraph 33 of the judgment.

[12] See: Harmse v City of Cape Town [2003] 6 BLLR 557 (LC) and IMAWU v Greater Louis Trichardt Transitional Local Council (2000) 21 ILJ 1119 (LC).

[13] (2004) 25 ILJ 1593 (CC)

[14] Ibid at paragraph 78 of the judgment.

[15] (2017) 38 ILJ 831 (CC).