Nefale v Office of the Premier: Gauteng Province (JS878-19) [2021] ZALCJHB 79 (2 June 2021)

Nefale v Office of the Premier: Gauteng Province (JS878-19) [2021] ZALCJHB 79 (2 June 2021)

The applicant's amended statement of case fails to disclose a cause of action for unfair discrimination under the Employment Equity Act because it does not identify the grounds of discrimination nor specify whether the alleged discrimination is direct or indirect. The law requires that a party relying on unfair discrimination must specify the stated ground or another arbitrary ground as permitted. In the absence of such pleading, there is no cause of action. The exception is therefore upheld.

Citation
[2021] ZALCJHB 79
Parties
Applicant: Khathutshelo Nefale; Respondent: The Office of the Premier: Gauteng Province
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
2 June 2021
Case Number
JS878-19
Procedural Posture
Exception Application / Interlocutory: Exception to Amended Statement of Case
Outcome
Exception upheld; applicant granted leave to amend statement of claim within fourteen days, failing which the statement of claim is struck out; no order as to costs.
Judges
F. Coetzee
Legal Topics
Employment Equity Act, Unfair Discrimination, Pleading Requirements, Exception Procedure
Labour Law Employment Equity Act Unfair Discrimination Pleading Requirements Exception Procedure

Case Brief

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Parties

Khathutshelo Nefale

Applicant

The Office of the Premier: Gauteng Province

Respondent

Procedural Posture

Exception Application / Interlocutory: Exception to Amended Statement of Case

Legal Issues

  1. 1 Whether the applicant's amended statement of case discloses a cause of action for unfair discrimination under the Employment Equity Act.
  2. 2 Whether the applicant has identified the grounds of discrimination as required by section 6 of the Employment Equity Act.
  3. 3 Whether the applicant has pleaded whether the alleged discrimination is direct or indirect.

Ratio Decidendi

The applicant's amended statement of case fails to disclose a cause of action for unfair discrimination under the Employment Equity Act because it does not identify the grounds of discrimination nor specify whether the alleged discrimination is direct or indirect. The law requires that a party relying on unfair discrimination must specify the stated ground or another arbitrary ground as permitted. In the absence of such pleading, there is no cause of action. The exception is therefore upheld.

Court Disposition

Exception upheld; applicant granted leave to amend statement of claim within fourteen days, failing which the statement of claim is struck out; no order as to costs.

Orders

  • The exception succeeds.
  • The applicant is granted leave within fourteen days of the date of this order to file an amended statement of claim should he wish to, failing which the statement of claim is struck out.