South African Municipal Workers Union and Others v City of Johannesburg Metropolitan Municipality (JS987/15) [2016] ZALCJHB 568 (26 October 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JS 987/15

In the matter between:

SOUTH AFRICAN

MUNICIPAL

First Applicant

WORKERS

UNION

AFITLHILE, B & 4 OTHERS

Second and further Applicants

and

CITY OF

JOHANNESBURG

Respondent

METROPOLITAN MUNICIPALITY

Heard: 14 July 2016

Delivered: 26 October 2016

Summary: Exception to statement of case – claim for unfair discrimination in terms of EEA must disclose the listed or arbitrary

ground relied upon.

VAN

DER MERWE AJ

[1] The Applicants filed a statement of claim dealing with two matters:

1.1 An unfair discrimination claim in terms of section 6(4) read with section 6(1) of the Employment Equity Act 1998 (“EEA”); and

1.2 A claim for outstanding arrear salary owed to one of the Applicants in terms of section 77(3) of the Basic Conditions of Employment Act 1997 (“BCEA”).

[2] The Respondent filed an exception to the aforementioned statement of case, alleging that:

2.1 The claim for unfair discrimination in terms of the EEA did not disclose a cause of action, alternatively was vague and embarrassing; and

2.2 The claim in terms of the BCEA did not disclose a cause of action, alternatively was vague and embarrassing.

[3] In its exception notice the Respondent prayed that both claims be dismissed with costs.

[4] In its heads of argument before this Court, and in address, the Respondent did not pursue the second exception.

[5] The basis of the Respondent’s exception concerning the unfair discrimination claim is that the Applicants have not identified the ground of the alleged discrimination whether listed or unlisted and in case of the last mentioned did not allege that the unlisted ground had the potential to impair the fundamental human dignity of the Applicants as human beings or to affect them adversely in a comparably serious matter. With regard to one Applicant, that it is vague and confusing that in addition to the same (unidentified) ground that is relied upon in the case of all Applicants there is an additional (listed) ground of gender.

[6] At the commencement of these proceedings, the Applicants raised what was called an in limine point, namely that the Respondent’s prayer in the exception, that both claims should be dismissed with costs, was not competent.

[7] I am unconvinced that I should dismiss the exception simply because of the wording of the prayer at the end of the Respondent’s notice of exception. The Respondent is entitled to raise an exception and this Court has the power to hear such matter and make an appropriate order which may include a dismissal of a claim or opportunity to amend the papers complained of.

[8] In this case, I am satisfied that the Applicants’ statement of case is excipiable in as far as:

8.1 The claim of unfair discrimination by the five Applicants does not state the grounds of discrimination for the differentiation in remuneration; and

8.2 The additional claim of unfair discrimination by Shongwe, allegedly on the ground of gender, is inconsistent with and contradictory to the other claim of discrimination, and is, therefore, vague and embarrassing.

[9] The appropriate remedy would be to allow the Applicants opportunity to amend their papers.

Order

[10] The exception concerning the unfair discrimination claim is upheld, with costs.

[11] The Applicants are granted leave to within 14 days from the date of this order to file an amended statement of claim.

_____

Francois van der Merwe

Acting Judge of Labour Court of SA

APPEARANCES

FOR THE APPLICANTS: Advocate Manchu

Instructed by Cheadle Thompson

FOR THE RESPONDENT: Advocate Buirski

Instructed by Salijee Du Plessis Van Der Merwe