Sethole and Others v Dr Kenneth Kaunda District Municipality (JS576/13)  ZALCJHB 484 (21 September 2017) 1 BLLR 74(LC)
There is a three level enquiry seeking to establish whether differentiation constitutes unfair discrimination. The first stage determines whether the differentiation that exists is of the kind that could give raise to a case of discrimination. The second stage decides whether such differentiation can be seen to be discrimination, and if so, the third stage investigates whether that discrimination is unfair.
At the first stage only differentiation that is irrational, arbitrary and serves no legitimate purpose would be impermissible. Differentiation that does not fall within one of these categories would be permissible differentiation, the discrimination enquiry would be at an end there and then, and the discrimination claim must fail. Where discrimination on an arbitrary ground is alleged, it has to be shown that dignitas or right of equality of the complainant as a person, or that person's personal attributes and characteristics, have been impaired or prejudiced.
The applicants, all environmental health practitioners (EHPs), complained that they were unfairly discriminated against because they were paid less than other employees employed by the municipality and by other municipalities who performed the same work. Their "comparators" were four pollution control officers (PCOs). The court raised the concern that the applicants had failed to identify in in their pleadings the ground of alleged discrimination on which they relied.
The Labour Court held that the applicants bore the onus of satisfying the Court that they had made out at least a prima facie case. Where the allegation is based on an "unlisted" ground, the onus rests on the applicant to prove some recognised basis for a discrimination claim.
The court found that the applicants had simply relied on a "mystery" ground of discrimination and had failed to comprehend that the test for unfair discrimination entails a three-step inquiry. They had simply assumed that all they had to prove differentiation, as opposed to discrimination. The Court held further that to constitute unfair discrimination a pleaded arbitrary ground must be such as to affect the complainant's dignity because it is based on some inherent characteristic. The applicants had failed to show that their dignity was affected by the fact that PCOs were on a higher grade then theirs. The essence of the applicants' complaint was simply that they were unhappy about the grading of their jobs. There was also no suggestion that the respondent had acted in bad faith when grading the post of PCO. In short, the applicants had failed to show on their own evidence that they would pass any leg of the test for unfair discrimination.
Extract from the judgment:
 It seems to me that despite the advent of our democracy and the adoption of our progressive Constitution, now more than two decades ago, discrimination claims, especially in the context of employment law, are unfortunately still a regular occurrence. This leaves one pondering the question, why is this so? Is it true that discrimination is still alive and vibrant in the workplaces of this country? Is it a case that litigants simply do not understand what a discrimination claim in fact entails? Or is it just a new form of ambulance chasing with the view to extort monetary benefits, considering the fact that such claims in effect have a substantial punitive component and no limit on compensation? I must confess that I have my concerns that the spates of discrimination claims seeking money are founded on this latter consideration.
 But the above being said, the fact however remains that because of the nature of the issues and fundamental rights involved in discrimination claims, a Court should be careful and circumspect in declining to entertain the claim, especially where it comes to deciding issues such as absolution from the instance. After all, Courts are the custodians of the right to equality under the Constitution.
 These opening remarks then bring me neatly to the case now at hand. It is a claim by the applicants based on unfair discrimination as contemplated by Section 6 of the Employment Equity Act ('the EEA'). At the heart of the case is a complaint about a remuneration differentiation between the applicants and employees in another post at the respondent, with the applicants saying that they perform same or similar work as these other employees, but are paid less and receive lesser benefits. As far as the applicants are concerned, this difference in remuneration and benefits is not founded on a listed ground in Section 6 of the EEA, but on an unlisted arbitrary ground, also contemplated by Section 6 of the EEA.
 In Independent Municipal and Allied Workers Union and Another v City of Cape Town, the Court properly summarized the position as follows:
'Moreover, s 11 of the EEA provides that whenever unfair discrimination is alleged, the employer against whom the allegation is made must establish that it is fair. This in effect creates a rebuttable presumption that once discrimination is shown to exist by the applicant it is assumed to be unfair and the employer must justify it - Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC); (1999) 20 ILJ 525 (CC); and Hoffmann v SA Airways 2000 (2) SA 628 (W); (2000) 21 ILJ 891 (W). Once discrimination has been established, the employer will have to prove that the discrimination was fair...'In specifically dealing with discrimination on an unlisted ground, the court in Matjhabeng Municipality v Mothupi NO and Others said:
'...a litigant who founds a cause of action on unfair discrimination based on an unlisted ground bears the onus to establish the discrimination and to prove that such discrimination is unfair.' Following the 2014 amendments to the EEA, Section 11 now reads:
- 'If unfair discrimination is alleged on a ground listed in section 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination-
- did not take place as alleged; or
- is rational and not unfair, or is otherwise justifiable.
- If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that -
- the conduct complained of is not rational;
- the conduct complained of amounts to discrimination ; and
- the discrimination is unfair.'
'... there is nothing in the EEA or in the amendment thereof which indicates that it must be applied retrospectively. As such, the presumption that must apply is that it is not retrospective and that the existing procedure prior to the amendment must find application. This presumption can then only be rebutted if there exists particular considerations of fairness and equity to do so and if there is a clear intention to be gathered from the statute itself that it was intended to apply to even pending proceedings. I can find no indication in the EEA of any intention that the amendment applies to existing and pending proceedings, already in existence prior to the amendment. I can equally find no compelling reasons of equity and fairness necessitating a departure from the general principles as stated....'This means that the principle that the onus is on the applicants to prove discrimination, as discussed above, remains applicable.
 Secondly, and even if Section 11 of the EEA after its amendment is considered, there is a clear distinction, where it comes to the issue of who bears the onus, between a case of discrimination based on one of the listed grounds in Section 6(1) of the EEA, and a case based on any other unlisted arbitrary ground. In the case of a claim of discrimination based on a listed ground, an allegation of such kind of discrimination by a complainant suffices, and the onus is then on the respondent party to prove it does not exist. But in the case of a discrimination claim based on any other unlisted arbitrary ground, the onus is on the complainant to prove that discrimination based on that ground exists. Considering that the applicants' claim is squarely based on such an unlisted arbitrary ground, they would in any event bear the onus to prove the existence of discrimination, in terms of Section 11(2) of the EEA, as it stands after amendment.
 With the applicants thus bearing the onus in respect of their discrimination claim, it is therefore competent to proceed to decide, in terms of an absolution from the instance application, whether the applicants have at least made out a prima facie case in this regard and whether their evidence, as led to the point of closure of their case, can at least lead to a reasonable inference that they had been discriminated against in the context of remuneration disparity. I will now proceed to set out the background facts as established by the evidence properly before me, as a whole, to the point of the applicants closing their case.
 The point of departure in deciding whether the applicants had made out a prima facie case of discrimination has to be a consideration of Section 6(1) of the EEA. Prior to the 2014 amendments to the EEA, the Section read:
'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.'What the 2014 amendments to the EEA did was to add the phrase '... or on any other arbitrary ground' to the end of the Section.
 The applicants have also argued that Section 6(4) of the EEA applied in this case, and that they also relied on that provision. Of course, and when this claim was brought in 2013, Section 6(4) did not exist. But in the founding affidavit, it is clear that the applicant's claim is articulated in the form as one would articulate a claim under Section 6(4). This position was reaffirmed by way of the notice of intention to amend dated 20 June 2017, which the respondent did not oppose. I will therefore accept that reliance on Section 6(4) of the EEA is part of the applicants' case. That being said, reliance on this provision per se and as it now stands can however be swiftly disposed of. As I have said earlier in this judgment, Section 6(4) came about as a result of the 2014 amendments to the EEA, and these amendments do not have retrospective effect. At risk of repetition, I reiterate that this matter must be decided on the basis of the EEA as it existed at the time when the applicants initiated their claim in the Labour Court in 2013.
 The above being said, what is in any event clear is that the 2014 amendment to Sections 6(1) and 11 of the EEA, together with the introduction of Section 6(4), did nothing more than to simply give written manifestation to the manner in which the Labour Court had already been interpreting and applying Sections 6 and 11 of the EEA prior to amendment, especially in the context of what became known as 'equal pay' disputes. This was aptly summarized in Mangena and Others v Fila SA (Pty) Ltd and Others as follows:
'The first question that arises is whether equal pay claims, and in particular claims for equal pay for work of equal value, are contemplated by the EEA. Unlike equality legislation in many other jurisdictions, the EEA does not specifically regulate equal pay claims. Section 6 of the Act prohibits unfair discrimination in any employment policy or practice, on any of the grounds listed in s 6(1) or on any analogous ground, if an applicant is able to show that the ground is based on attributes or characteristics that have the potential to impair the fundamental human dignity of persons or to affectthem in a comparably serious manner. ... 'Employment policy or practice' is defined by s 1 of the EEA to include remuneration, employment benefits and terms and conditions of employment. To pay an employee less for performing the same or similar work on a listed or an analogous ground clearly constitutes less favourable treatment on a prohibited ground, and any claim for equal pay for work that is the same or similar falls to be determined in terms of the EEA. Similarly, although the EEA makes no specific mention of claims of equal pay for work of equal value, the terms of the prohibition against unfair discrimination established by s 6 are sufficiently broad to incorporate claims of this nature. ... I see no reason why the principle of equal pay for work of equal value should not be extended beyond the listed ground of sex to other listed and analogous grounds ...'In Duma v Minister of Correctional Services and Others the Court also, in dealing with an equal pay claim under the EEA prior to amendment, accepted that the reference to 'one or more grounds, including ...' (emphasis added) in Section 6(1) of the EEA prior to amendment contemplated unlisted arbitrary grounds. In my view, it is clear that the amendments to the EEA contemplate inter alia the aforesaid considerations.
 Therefore, and similar to the approach that has been consistently adopted in the Court so far, Section 6(4) still contemplates the establishment of differentiation, and then requires that this differentiation be based on the grounds in Section 6(1), for it to be discrimination. In short, whether one relies on the amended Section 6(1) and the newly created Section 6(4) of the EEA, or the application of Section 6(1) of the EEA prior to the 2014 amendments, the position relating to establishment of differentiation and then whether that differentiation amounts to discrimination, remains the same.
 As I have touched on above in the introduction in this judgment, the applicants in effect sought to rely on a mystery unlisted arbitrary ground as the foundation for their claim of discrimination. What was pleaded as alleged grounds of discrimination in the founding affidavit were that the duties of PCOs were simply an extract from part of the duties of the EHPs, that the PCOs were graded and paid higher that EHPs, that is was unjustified for the respondent to create the post of PCOs rather than simply increasing the number of EHPs, and that the respondent must prove and justify the difference between the functions of the two posts of EHP and PCO.
 The pre-trial that followed did not assist much. In terms of the pre-trial minute, the disputed issues where it came to discrimination was that the positions of PCO and EHP were the same in terms of scope of work, that the two positions should be graded the same based on their operational output, and that the two positions should be paid the same and receive the same benefits.
 It is clear that all of these alleged grounds of discrimination, as pleaded in the founding affidavit and pre-trial minutes, provide no particularity of any kind which could inform even the most generous reader what exactly the arbitrary ground would be, considering the test for unlisted arbitrary grounds set out in Harksen (which I will discuss later)....
 The approach of the applicants in prosecuting their case thus bedevilled this matter from the outset. The Labour Court has been consistently saying that complainant parties must properly identify the unlisted arbitrary ground relied on, up front, and in the pleadings. In National Union of Metalworkers of SA and Others v Gabriels (Pty) Ltd the Court held:
'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 ...'And in Fila SA the Court held as follows specifically in the context of the differentiation claim:
'This court has repeatedly made it clear that it is not sufficient for a claimant to point to a differential in remuneration and claim baldly that the difference may be ascribed to race. ...' In the absence of proper pleading of the unlisted ground, I was then promised a revelation of the unlisted arbitrary ground once the evidence was in. But I still remain uninformed, despite the evidence led, considering the testimony summarised above...
 How the above case, even if taken on face value, can serve to establish the existence of unfair discrimination against the applicants, boggles the mind. It is simply not unfair discrimination based on an unlisted arbitrary ground as contemplated by the EEA. What the applicants simply seem unable to comprehend is that an enquiry into whether differentiation constitutes unfair discrimination is a three level enquiry. As will be discussed hereunder, all the applicants did was to seek to prove the first of the three levels of this enquiry, being the existence of impermissible differentiation, and then stopped on the assumption that unfair discrimination automatically follows impermissible differentiation being shown to exist. As I will now elaborate on, this approach is simply wrong.
 The three level enquiry seeking to establish whether differentiation constitutes unfair discrimination starts off by determining whether the differentiation that exists is of the kind that could give raise to a case of discrimination. In short, and even if there is differentiation, it does not mean that such differentiation per se would violate the right to equality. This was specifically contemplated by the judgment of the Constitutional Court in Prinsloo v Van der Linde and Another, where the Court said:
'If each and every differentiation made in terms of the law amounted to unequal treatment that had to be justified by means of resort to section 33, or else constituted discrimination which had to be shown not to be unfair, the courts could be called upon to review the justifiability or fairness of just about the whole legislative programme and almost all executive conduct. ... The courts would be compelled to review the reasonableness or the fairness of every classification of rights, duties, privileges, immunities, benefits or disadvantages flowing from any law. Accordingly, it is necessary to identify the criteria that separate legitimate differentiation from differentiation that has crossed the border of constitutional impermissibility and is unequal or discriminatory "in the constitutional sense"' The Court in Prinsloo then proceeded to identify those criteria which would separate legitimate differentiation from that which could be seen to be impermissible or possibly discriminatory, as follows:
'... It is convenient, for descriptive purposes, to refer to the differentiation presently under discussion as "mere differentiation". In regard to mere differentiation the constitutional state is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest "naked preferences" that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state. The purpose of this aspect of equality is, therefore, to ensure that the state is bound to function in a rational manner. ...' In my view, what the Court did in Prinsloo was to make it clear that only specific kinds of differentiation would be impermissible. This would be differentiation that is irrational, or arbitrary, or based on what the Court called a 'naked preference', or served no legitimate purpose. Differentiation that cannot be shown to fall within one of these categories would be permissible differentiation, the discrimination enquiry would be at an end there and then, and the discrimination claim must fail.
 However, and once it is found that the differentiation is indeed impermissible, on one of the grounds set out in Prinsloo, then the second and third stage of the enquiry is embarked upon, namely deciding whether such differentiation can be seen to be discrimination, and if so, whether that discrimination is unfair
 Accordingly, discrimination contemplated in this context means that it has to be shown that dignitas or right of equality of the complainant as a person, or that person's personal attributes and characteristics, have been impaired or prejudiced. To describe it simply, the arbitrariness must be something akin or related to the kind of listed grounds in Section 6(1) of the EEA. As said in Stojce v University of KwaZulu-Natal and Another:
'The Constitutional Court and the Labour Court have considered unlisted grounds as acts of discrimination if they are analogous to the listed grounds ...' Further examples of the kind of 'arbitrary ground' not specifically listed which would be seen to be discrimination, can be found in New Way Motor and Diesel Engineering (Pty) Ltd v Marsland which concerned mental illness based on depression and Smith v Kit Kat Group (Pty) Ltd which concerned a physical disfigurement as a result of attempted suicide...
 The fundamental difficulty with the applicants' case is that they have simply dismally failed to prove any of the above considerations where it comes to establishing an arbitrary ground. They have failed to identify and plead the actual basis of the ground relied on. They have not shown, even if the testimony and documentary evidence is taken as it stands, how their fundamental human dignity or persona has been impaired or prejudiced. There is virtually no proper evidence of the impact the alleged discrimination would have on them. What the applicants have done, as I dealt with above, is to simply equate their complaint of irrational and unlawful behaviour by the respondent in creating and then grading the PCO posts (being the differentiation) as being discrimination, which, as illustrated, it is not. As said in Mothoa v SA Police Service and Others:
'... Although s 6 of the Employment Equity Act does not provide a closed list of grounds, that in my view is not licence to bring in all and everything that appears to be different from the other.'On this basis alone, the applicants have failed to establish even a prima facie case of discrimination on an arbitrary ground, should the existence of impermissible differentiation be accepted to exist...
 For all the reasons set out above, I conclude that the applicants have failed to provide sufficient evidence to even establish a prima facie case that they had been discriminated against. In this respect, the applicants have failed to make out a prima facie case both on the basis that impermissible differentiation exists, and that any differentiation that may exist is founded on an unlisted arbitrary ground as contemplated by Section 6(1) of the EEA. The application for absolution from the instance is accordingly granted...