Rarayi v Oak Valley Estates

The Equality Court upheld a jurisdictional objection and dealt with an objection to the “jurisdiction of the Equality Court to conduct an enquiry in terms of s 21 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘the Equality Act’). Although the objection may seem to be a technical matter, it is of the utmost importance to resolve it. On the merits the case raises important issues. There are wide-ranging factual and legal disputes”.


Jurisdictional objection upheld by Equality Court because it is excluded unambiguously by s 5(3) of the Equality Act.


(EC13/2019) [2019] ZAEQC 7 (22 November 2019)


Refused application due to lack of jurisdiction.


OL Rogers J

Heard:            7 November 2019
Delivered:    22 November 2019

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“[69] I thus conclude that the Equality Court does not have jurisdiction to entertain this matter and the proceedings must be dismissed. I do not think I have the power to refer the case to another forum in terms of s 20 of the Equality Act.

The Equality Court’s referral power presupposes that it has jurisdiction. In terms of s 20(1), the section as a whole applies only to proceedings ‘under’ the Equality Act. That must mean proceedings which can properly be instituted in the Equality Court.

And as appears from s 20(8), the matter must be one which the Equality Court can adjudicate if the alternative forum fails to deal with the matter timeously or resolve it successfully.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

[1] This judgment deals with an objection to the jurisdiction of the Equality Court to conduct an enquiry in terms of s 21 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘the Equality Act’). Although the objection may seem to be a technical matter, it is of the utmost importance to resolve it. On the merits the case raises important issues. There are wide-ranging factual and legal disputes A determination of the merits will call for oral evidence and entail proceedings which, even having regard to the less formal processes of the Equality Court, may run for some weeks. It would be disastrous to have a lengthy hearing followed by a decision on the merits, only to have the outcome nullified on appeal because this court lacked jurisdiction.

[2] The first 42 applicants are persons who have historically worked on the fruit farm Oak Valley in Elgin. I shall refer to them collectively as the applicants. The 43rd applicant is the Trust for Community Outreach & Education (‘the Trust’), a non-profit organisation and trust which supports the applicants’ complaints and has provided supplementary evidence.

[3] The first and second respondents, Oak Valley Estates (Pty) Ltd and Oak Valley Property Holdings (Pty) Ltd, to whom I shall refer collectively as OV, are respectively the employer of the permanent workers on the farm and the owner of the farm. The third respondent, Boland Labour (‘BL’), is the employer or ‘paymaster’ of seasonal farmworkers on the farm.

The fourth and fifth applicants are Two-a-Day Group (Pty) Ltd (‘TAD’) and Tru-Cape Fruit Marketing (Pty) Ltd (‘TCF’). TAD, which was formerly an agricultural cooperative, is a private company owned by fruit farming interests while TCF is its sales and marketing arm. OV is a shareholder of, and an important contributor to, TAD and TCF. Where I refer to the respondents collectively, it is a reference to these five parties.

[4] The sixth respondent is the Commercial Stevedoring Agricultural and Allied Workers Union (‘the Union’) which, though cited as a respondent, makes common cause with the applicants and has filed lengthy papers.

[5] After the institution of proceedings, OV caused the seventh and eighth respondents to be joined. They are respectively the Department of Human Settlements, Western Cape Provincial Government (‘DHS’), and the Theewaterskloof Municipality (‘TKM’).

[6] The jurisdictional challenge is raised by OV and the DHS. It must be answered on the assumption that the facts stated in the applicants’ founding papers are true, even though many of those facts are disputed by the respondents (Lewarne v Fochem International (Pty) Ltd [2019] ZASCA 114; (2019) 40 ILJ 2473 (SCA) para 7).

The facts which follow are thus those alleged by the applicants.

[7] The applicants say that they are still employed by OV. Although only 11 of them are recognised by OV as permanent employees, they are all in substance permanent employees, having worked continuously for OV for some years, a number of them for more than ten years.

[8] They are African men from Qumbu. For many years OV, in common with other fruit farmers in the Western Cape, has used migrant labour from the Eastern Cape. In OV’s case, its migrant labour has been drawn from the Qumbu community. The migrant workers from Qumbu have always been accommodated in single-sex hostels on Oak Valley. The hostel they currently occupy (‘the EC hostel’) was built in 1988. The longest-standing of the applicants began working for OV in 1993, the most recent in 2017.

[9] In their Form 2 notice, being the prescribed notice of institution of proceedings in terms of s 20 of the Equality Act, the applicants state that particulars of their complaint are set out in the accompanying affidavits.

The relief they seek, as set out in the notice, is, in the first instance, that this court (ie the Equality Court) order an enquiry to be held in terms of s 21(1) into the applicants’ causes of action under the Equality Act before a consideration of their claims for consequential relief.

[10] The consequential relief they claim is

(a) a declaration that OV and BL’s failure ‘to create and implement a scheme for accommodation and housing which allows their employees to be afforded adequate, humane and decent living conditions for their African employees and their families’ is unlawful;

(b) a declaration that OV and BL must, until such order is revoked, provide adequate, humane and decent living conditions to all employees accommodated on the farm and their families;

(c) that OV and BL may apply to the Equality Court for these orders to be revoked once they have created and implemented a scheme of the kind contemplated in (b).

[11] In the alternative to claim (b) above, the applicants claim such relief as the court deems appropriate with a view to

(i) redressing the said failure; and

(ii) protecting the constitutional rights of the applicants and their families to adequate, humane and decent living conditions.

Ancillary alternative relief in support of these alternative claims are:

  • that the respondents be required to undergo an audit of their housing and accommodation policies and practices;
  • that the court recommend to Sustainability Initiative South Africa (‘SIZA’) that it suspend its certification of the respondents as compliant with the SIZA Social Standard; and
  • that the respondents be directed to make regular progress reports to the court, to the South African Human Rights Commission (‘SAHRC’) and to the Commission for Gender Equality (‘CGE’) regarding the implementation of their policies and practices for adequate, humane and decent housing.

[12] The founding papers are somewhat diffuse and it is not easy to discern the precise causes of action.

In paras 114-119 of his affidavit, the first applicant refers to

  • ss 7-10, 12, 14, 25-28 and 32 of the Constitution,
  • to article 11(1) of the 1996 International Covenant on Economic, Social and Cultural Rights,
  • to article 18 of the African Charter of Human and Peoples’ Rights,
  • to the Equality Act and
  • to the Employment Equity Act 55 of 1998 (‘the Employment Act’).

In paras 104.13-104.14 there is a passing reference to the Extension of Security of Tenure Act 62 of 1997 (‘ESTA’), something expanded upon in paras 108-115 of the supporting affidavit by Ms Mercia Andrews, a researcher with the Trust.

[13] Although the applicants have many and varied complaints against the respondents, the relief they seek concerns only their accommodation on the farm. They seek no relief in this court in connection with their alleged dismissal or with the distinction drawn between permanent and seasonal workers or with OV’s alleged failure to transform its workforce and provide opportunities for promotion of black workers, though there are parallel proceedings in the Labour Court on some of these matters. For present purposes, I proceed on the assumption that the applicants are, as they allege, currently all permanent employees of OV.

[14] Their allegations about their accommodation can be stripped down to two essential complaints:

(a) that their accommodation is inadequate even for single-sex occupation, because of the smallness of the rooms and lack of privacy, and is inadequate and inhumane to them and their families because it effectively compels the wives, partners and children of the workers to live geographically separate lives;
(b) that OV discriminates against the African workers from Qumbu by limiting their accommodation to a single-sex hostel while providing family accommodation, of superior quality, to white and coloured employees.

I shall refer to these two essential complaints as the first and second complaints.

[15] Although the allegations in support of these and other complaints are interwoven, one will find the first complaint articulated particularly in paras 44, 70.2, 74, 78, 91 and 117 of Mr Rarayi’s founding affidavit, in para 67 of Ms Andrews’ affidavit and in paras 10-12, 16-18 and 32-36 of the affidavit of Mr Boyce Tom, also a researcher with the Trust.

The second complaint is pertinently formulated in paras 23, 26, 57-58 and 66 of Mr Rarayi’s affidavit and in paras 62-67 of Ms Andrews’ affidavit. The founding affidavits of Mr Rarayi and Ms Andrews also set out the history of the racial division of labour and housing with its roots in apartheid’s migrant labour system.

[16] Sections 6 to 9 of the Equality Act prohibit unfair discrimination in general and on particular grounds. Sections 10 and 11 prohibit hate speech and harassment, while section 12 prohibits the dissemination and publication of information that unfairly discriminates. These prohibitions apply to all persons, not only the State. The present case does not allege hate speech, harassment or the dissemination of information that unfairly discriminates.

[17] ‘Discrimination’ is defined in s 1 as meaning

‘ any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly –
(a) imposes burdens, obligations or disadvantage on; or
(b) withholds benefits, opportunities or advantages from,
any person on one or more of the prohibited grounds.

[18] Various grounds of unfair discrimination are listed in para (a) of the definition of ‘prohibited grounds’. They include race, gender, sex, and ethnic and social origin. In addition to specified grounds of this kind, para (b) provides that a ground is a ‘prohibited ground’ where discrimination on such ground

‘(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on the ground in paragraph (a)’.

[19] The applicants’ second complaint is that there is unfair discrimination between them, as African workers from Qumbu, and white and coloured workers in regard to the character and quality of accommodation provided by OV. If true, this is discrimination on one or more prohibited grounds – race and ethnic or social origin. Indirectly there may also be gender discrimination, in that the female partners of white and coloured workers are able to reside with their partners whereas the partners of African workers are not. The second complaint thus qualifies as ‘unfair discrimination’. Subject to any relevant statutory exclusion, this is a matter falling within the jurisdiction of the Equality Court.

[20] The first complaint, on the other hand, does not appear to me to be one of unfair discrimination. The heart of the first complaint is the alleged inadequacy and inhumanity of accommodation in the EC hostel. If the accommodation were adequate and humane but inferior to that of white and coloured employees on account of the applicants’ race, the second complaint would be left standing but not the first. Conversely, it would be no answer to the first complaint to say that all workers on the farm are accommodated in equally inadequate and inhumane hostels.

[21] I am not called upon, at this stage, to decide whether the first complaint gives rise to a valid cause of action. One might argue, against it, that a private employer is under no duty to provide accommodation to members of the public and need only provide accommodation to employees if this is an agreed benefit of employment. If the employer offers accommodation as an employment benefit, and an employee regards it as inadequate and undignified, he or she is not bound to accept the offer. It may be going quite far to say that the employee is entitled to accept the offer of inadequate accommodation and then assert that such accommodation violates his or her fundamental rights and that the employer must thus provide materially superior and more extensive accommodation.

[22] However, for present purposes I must assume that such a case could plausibly be advanced, the question being whether it would engage the jurisdiction of the Equality Court. In dealing with this question, it is convenient to consider, first, the relevant provisions of ESTA, being one of the pieces of legislation the applicants invoke. On their version, they are persons who on or after 4 February 1997 have had OV’s consent to reside on Oak Valley.

They are thus ‘occupiers’ as defined in ESTA. In terms of s 6(1) they have the right to reside on and use the land on which they have so resided, and to have access to such services as have been agreed between themselves and the owner, until the consent is duly terminated.

[23] Section 5 provides that, subject to justifiable limitations based on human dignity, equality and freedom, an occupier and an owner have the right inter alia to human dignity, freedom and security of the person, privacy, freedom of association and freedom of movement, with due regard to the objects of the Constitution and ESTA.

[24] Section 6(2), without derogating from the generality of s 5 and s 6(1), says that an occupier shall have the rights listed in that subsection, such to be balanced with the rights of the owner. These rights are: security of tenure; to receive bona fide visitors at reasonable times and for reasonable periods; to receive postal or other communication; to family life in accordance with the culture of that family; burial rights as circumscribed; and the right not to be deprived of access to water and educational and health services.

[25] Of the specific rights listed in s 6(2), the right to family life is, by way of a proviso to s 6(2)(d), made inapplicable ‘in respect of single sex accommodation provided in hostels erected before 4 February 1997’. The EC hostel was built in 1988. It follows that the applicants cannot, in terms of ESTA, claim that their right of occupation includes the right to family life in accordance with Qumbu culture.

[26] Although there is a dispute about the applicants’ entitlement to remain in occupation of the EC hostel, for purposes of the jurisdictional dispute I assume that they are permanent employees having consent to reside in the EC hostel. Their right to reside there, and alleged attempts at their eviction, are not the subject of the present proceedings. It is the character and quality of the accommodation which is the focus of the first complaint. The present case is also not concerned with alleged violations of any of the other rights of occupation listed in s 6(2).

[27] The right of occupation enjoyed in terms of ESTA is a right to occupy in accordance with the consent and agreement between the owner (or person in charge) and the occupier. What appears from the founding papers is that the consent granted by OV has been for the applicants to occupy the EC hostel with the services customarily provided to that hostel. The applicants complain that the EC hostel is inadequate but do not say that OV has agreed to provide them with anything more.

[28] Having regard to the proviso to s 6(2)(d), the provision of accommodation in a single-sex hostel erected before 4 February 1997 cannot be construed as violating the fundamental right to human dignity recognised in s 5 insofar as family life is concerned. On the other hand, single-sex hostel accommodation may infringe human dignity by being cramped and crowded. Although there is a factual dispute on this score, I assume for present purposes that accommodation in the EC hostel does – having regard to the number of workers housed there – infringe their human dignity.

[29] It is perhaps doubtful whether s 5 of ESTA can be invoked by an occupier to force a private owner to provide housing of a materially superior and more extensive character than that forming the subject of the consent and agreement between occupier and owner. The parties’ legal representatives were not able to refer me to any case where s 5 had been invoked in this way.

[30] In Daniels v Scribante [2017] ZACC 13; 2017 (4) SA 341 (CC), containing perhaps the most powerful and moving judgments yet delivered in this country about land dispossession, the court held that Ms Daniels, an ESTA occupier, had a right to make improvements to the dwelling which she had for 16 years occupied with the owner’s consent. She wanted, at her own cost, to level the floors, pave an outside area and install an indoor water supply, a wash basin, a second window and a ceiling.

The Constitutional Court described these as ‘basic human amenities’ (para 7). The owner admitted that without these improvements the dwelling was not fit for human habitation but argued that the right to make improvements was not one of the rights listed in s 6.

[31] The Constitutional Court emphasised s 5 in reaching its conclusion that Ms Daniels’ right to reside and use her dwelling in terms of s 6(1) included the right to make improvements to render the dwelling habitable. The court also addressed an argument by the owner that to allow the occupier to do so would indirectly impose a positive obligation on the owner because upon the termination of Ms Daniels’ occupation the owner might be ordered to compensate her for the improvements in terms of s 13(1)(a) of ESTA.

The majority (per Madlanga J) addressed the horizontal application of the Bill of Rights and concluded that the possibility of a compensation order as a positive obligation was not one from which the court should shrink.

Whether the owner would be ordered to pay compensation depended on a variety of considerations – it might or might not happen (para 51 – in terms of s 13(1)(a) compensation is payable ‘to the extent that it is just and equitable with due regard to all relevant factors’ including those listed in para (a)).

[32] Scribante does not deal with the question whether an owner itself has a positive obligation to make improvements; and the improvements at issue in the case did not involve substantial extensions to the housing the owner had consented to provide.

[33] If, however, an occupier may deploy s 5 to force an owner to provide materially superior housing so as to remove a violation of the occupier’s human dignity, the question must still be answered whether this is something which can be done in the Equality Court. Chapter V of ESTA provides that proceedings under that Act may (subject to ss 19 and 20) be instituted in the magistrate’s court within whose area of jurisdiction the land is situated or in the Land Claims Court (‘LCC’).

Sections 19(b) and 20(1)(b) contemplate remedies which would embrace a declaration of the rights of an occupier flowing from an alleged violation of s 5 and interdicts to give effect to the declaration, including the setting of time-limits for the implementation of the order (s 18(a)). Indeed, in Daniels v Scribante, supra, the case started out in the magistrate’s court, presumably in terms of s 19(1)(b), followed by unsuccessful attempts to appeal to the LCC and the Supreme Court of Appeal (para 10).

[34] To the extent that a matter falls within the jurisdiction of the LCC, such jurisdiction is, in terms of s 20(2) of ESTA, to the exclusion of the courts contemplated in s 166(c), (d) and (e) of the Constitution, unless the parties agree that proceedings may be instituted in the High Court (s 17(2)) or unless the matter falls within the jurisdiction of the magistrates’ court in terms of s 19 of ESTA.

The Equality Court, when presided over by a judge, is a court of status similar to a High Court as contemplated in s 166(e) (Manong & Associates (Pty) Ltd v Department of Roads & Transport, Eastern Cape Province & another [2009] ZASCA 59; 2009 (6) SA 574 (SCA) para 31).

[35] The applicants’ attorney referred me to the decision of Heher JA in Agrico Masjinerie (Edms) Bpk v Swiers 2007 (5) SA 305 (SCA), where it was held that s 20(2) of ESTA did not preclude a court other than the LCC from interpreting and assessing the scope of ESTA.

However, Heher JA did not say that a party asserting rights under ESTA could bypass the exclusive jurisdiction of the LCC. In that case the applicant in the court a quo had not asserted rights under ESTA; it brought a conventional eviction application in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The respondent in defence relied on rights arising from ESTA but did not seek any relief by way of counter-application. The applicant considered such reliance ill-founded.

In the circumstances, so Heher JA held, the High Court had not been precluded from interpreting ESTA to establish whether the defence was sound. In the present case, by contrast, the applicants have alleged that they have rights in terms of ESTA, and what I am assessing in this part of my judgment is whether relief, to the extent that it is sourced in ESTA, can be claimed in the Equality Court.

[36] If, however, it were concluded that such a matter is not governed by Chapter V, it does not follow that the Equality Court is the correct forum. The violation of s 5 would not be a matter of unfair discrimination; it would involve the infringement of different fundamental rights, in particular the rights to human dignity (s 10 of the Constitution), privacy (s 14) and adequate housing (s 26(1)).

Although the human dignity of a victim of unfair discrimination will almost always be violated by unfair discrimination (a fact recognised in the preamble to the Equality Act and in s 14(3)(a) thereof), human dignity can be violated in ways which do not involve discrimination. Inadequate housing and violations of privacy are examples (cf Dladla & others v City of Johannesburg & another [2017] ZACC 42; 2018 (2) SA 327 (CC) paras 47-49, a case concerning the provision of temporary accommodation by a public authority, in which no reference was made to s 9 of the Constitution or to unfair discrimination).

[37] Violations of the cluster of rights which lie at the heart of the first complaint thus do not engage the jurisdiction of the Equality Court. This is so whether the case is framed with reference to s 5 of ESTA or directly with reference to ss 10, 14 and 26(1) of the Constitution. Subject to any exclusive or concurrent jurisdiction on the part of the LCC or Labour Court, the remedies for such infringement would have to be sought in the High Court.

[38] The applicants might notionally have contended that the provision of inadequate and undignified housing is an ‘unfair labour practice’ as defined in s 186(2) of the Labour Relations Act 66 of 1995 (‘the LRA’), or they could have disputed the standard of their housing as a ‘matter of mutual interest’ as contemplated in s 134 of the LRA. But they have not done so, and the remedies under the LRA would not be a matter for the Equality Court.

[39] Subject to one final consideration, to which I shall return presently, I conclude that the first complaint does not fall within the jurisdiction of the Equality Court. The second complaint prima facie does so but it is necessary in that regard to consider the Employment Act, because s 5(3) of the Equality Act states that it does not apply to any person to whom and to the extent to which the Employment Act applies.

This presents something of a conundrum, since s 49 of the Employment Act provides that the Labour Court has exclusive jurisdiction to determine any dispute ‘about the interpretation or application of’ the Employment Act, except where that Act provides otherwise.

[40] This question was not ventilated during argument in the present case.

In Strydom v Chiloane 2008 (2) SA 247 (T) the court, on appeal from a magistrate’s court sitting as an equality court, held that the complainant’s case should have been brought in the Labour Court in terms of the Employment Act.

Hartzenberg J, with whom Makhafola AJ concurred, added (para 17) that even if he were wrong, and there were a possibility of dual jurisdiction, the magistrate should have heeded s 49 and referred the matter to the Labour Court to decide the question of jurisdiction.

[41] In AS v Neotel 2019 (1) SA 622 (GJ) Spilg J observed (para 55) that the view expressed in Strydom appeared to have been reached without the benefit of countervailing argument. He thought that s 49, being a general provision applicable to all courts, ‘ought to yield to a provision of specific application to the Equality Court’.

He also thought that the intention and purpose of the Equality Act (expeditious and inexpensive adjudication) would be defeated if proceedings in the Equality Court had to be held in abeyance while the Labour Court (and potentially further courts on appeal from the Labour Court) determined the question of jurisdiction (para 56).

At a practical level, he suggested that the legislature consider expressly giving concurrent jurisdiction to the Equality Court and the Labour Court on issues concerning the interpretation of s 5(3) of the Equality Act.

[42] In my opinion, s 49 of the Employment Act should not be read as precluding an Equality Court from determining whether it has jurisdiction. The determination of jurisdiction is a fundamental task of any adjudicative body. Furthermore, the Equality Act was enacted after the Employment Act. Section 5(3) is a provision contained in the Equality Act. In the nature of things, disputes regarding the interpretation and application of s 5(3) will arise only in the Equality Court.

One may legitimately ask who the lawmaker intended should decide those disputes. The obvious answer is, the Equality Court. If the lawmaker had intended all such matters to be referred to the Labour Court, it would surely have said so.

[43] To the extent that s 49 of the Employment Act might be interpreted as applying to a fundamental question such as the jurisdiction of tribunals, I would find that there is an inconsistency between s 49 of the Employment Act and a necessary implication in the Equality Act that disputes regarding the interpretation and application of s 5(3) are matters for the Equality Court to decide. In that event, the necessary implication in the Equality Act must, in terms of s 5(2), prevail.

[44] The Employment Act, like the Equality Act, contains provisions in its preamble and in ss 2 and 3 which are relevant when assessing its ambit. The preamble recognises that as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the national labour market; and that these disparities create such pronounced disadvantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws.

The preamble continues by stating that the Employment Act has been enacted inter alia to promote the constitutional right of equality, to eliminate unfair discrimination in employment, and to ensure the implementation of employment equity to redress the effects of discrimination.

[45] This is reinforced by s 2 which states that the purposes of the Employment Act include the achieving of equity in the workplace by promoting fair treatment in employment through the elimination of unfair discrimination. Section 3 requires the Act to be interpreted inter alia in compliance with the Constitution and in a way that gives effect to the Act’s purposes.

[46] There is thus no justification for giving the Employment Act a narrow interpretation. Where discrimination is connected with the employment relationship, one should in case of doubt lean in favour of the application of the Employment Act. Stated differently, both the Employment Act and the Equality Act should, in view of their profoundly important remedial purposes, be interpreted generously in favour of jurisdiction.

[47] In terms of s 6(1) of the Employment Act, 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, . . . , ethnic or social origin, colour, . . . or on any other arbitrary ground’. For present purposes, this prohibition of ‘unfair discrimination’ is substantially the same as in the Equality Act, save that the Employment Act is limited to discrimination against an employee, whereas the Equality Act applies to discrimination against any person.

[48] In terms of s 10 of the Employment Act, any party to a dispute concerning Chapter II (this includes a dispute about prohibited unfair discrimination) may refer the dispute in writing to the Commission for Conciliation, Mediation and Arbitration (‘CCMA’) established in terms of s 112 of the LRA. If the dispute remains unresolved after conciliation by the CCMA, any party may refer it to the Labour Court for adjudication or to the CCMA for arbitration (in the latter event, only if all the parties agree or if the unfair discrimination falls within the ambit of s 10(6)(aA)).

[49] Section 49 of the Employment Act provides that the Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of the Act, except where the Act provides otherwise.

The ‘application’ of the Act includes a dispute about unfair discrimination against an employee. Section 50(2) sets out, in that regard, the just and equitable orders which the Labour Court can make if it decides that there has been unfair discrimination against an employee.

[50] What I have styled the second complaint falls squarely within the prohibition contained in s 6 of the Employment Act. The applicants’ attorney submitted that his clients’ housing complaint could not naturally be described as discrimination in an ‘employment policy or practice’ as that expression is defined in s 1 of the Employment Act. I disagree. The expression is defined as including ‘but is not limited to’ the matters listed in paras (a) to (m) of the definition.

Para (d) covers ‘remuneration, employment benefits and terms and conditions of employment’. The alleged differential treatment between African workers on the one hand, and white and coloured workers on the other, in relation to housing fits squarely within the notion of an employment policy or practice concerning employment benefits and terms and conditions of employment. Even if it did not, the definition is not exhaustive, and the alleged differentiation is quite clearly within the ordinary meaning of ‘employment policy or practice’.

[51] It follows that the only route for pursuing the second complaint is by way of a referral to the CCMA for conciliation followed either by adjudication by the Labour Court or (subject to the relevant qualifications) arbitration by the CCMA.

[52] I foreshadowed a final issue I wished to address in relation to the first complaint. I have explained why a complaint invoking violations of human dignity, privacy and the

right to adequate housing does not fall within the Equality Court’s jurisdiction. I must nevertheless acknowledge that the first complaint, like the second, might be said to involve racial discrimination. It might be contended, in this regard, that even if the African workers in the EC hostel were the only workers to whom OV offered housing (ie even if there were no actual differential treatment), the undignified character of their housing has its roots in an attitude by their employer that such accommodation is good enough for African people even though it would not be good enough for white or coloured people. Such an attitude in turn might be traced back to the historical discriminatory treatment of African migrant labourers.

[53] If such a case is to be discerned in the founding papers, it too would fall within the scope of unfair discrimination as contemplated in the Employment Act. The victims of the discrimination are (on the applicants’ case) employees. Their treatment, on this hypothesis, would be explicable with reference to their race, ethnicity or social origin, the premise being that they would be treated better if they were not African. The very basis of the case I have supposed is that discrimination on grounds of race may exist even though there happen to be no other employees of a different race receiving preferential treatment.

[54] The applicants’ attorney submitted that the Equality Act and the Equality Court were tailor-made to deal with cases of systemic inequality such as those associated with the migrant labour system. He submitted that the Labour Court is not clothed with the extensive powers which the Equality Act vests in the Equality Court to grant effective redress.

[55] I accept that the applicants’ complaints squarely raise systemic discrimination with its roots in the migrant labour system, a system I may add that predates the baleful apartheid regime which the National Party inaugurated in 1948. This does not mean, however, that the Employment Act is not the appropriate and mandated legislative measure to redress the grievance in the present case.

One of the main spheres of human activity in which systemic discrimination has manifested itself in South African history is labour relations. Whatever its historical genesis, and however extensive the single-sex hostel phenomenon may still be, the housing issue is, in the present case, strictly between OV and its employees. Regardless of the court that hears the case, the only order that could be granted is one operating between OV and its employees.

[56] If the Employment Act did not empower the Labour Court to grant redress for unfair discrimination as ample as the Equality Court could grant, that would be a grave defect indeed. If the criticism were justified, it would furnish grounds for challenging the constitutionality of the relevant provisions of the Employment Act, but it would not entitle the Equality Court to disregard the statutory provisions which confer exclusive jurisdiction on the Labour Court.

[57] As it happens, I do not think that the Employment Act suffers from the suggested defect. In terms of s 50(2) the Labour Court may, if it decides that an employee has been unfairly discriminated against, make ‘any appropriate order that is just and equitable in the circumstances’, including those listed. Section 50(2)(c) states that the court may make an order directing the employer ‘to take steps to prevent the same unfair discrimination or a similar practice occurring in the future in respect of other employees’.

If the court can do this in relation to other employees, it can clearly do so in relation to the very employees who have already been discriminated against – this would be the first and most obvious appropriate order that was just and equitable.

[58] It is true that s 21(2) of the Equality Act spells out the Equality Court’s powers in more detail.

After stating that the court may make ‘an appropriate order in the circumstances’, the subsection lists certain specific orders which are included in the appropriate orders that may be granted:

  • the court may make orders inter alia that ‘specific opportunities and privileges unfairly denied in the circumstances’ be made available to a complainant (para (g));
  • that ‘special measures’ be implemented to address the unfair discrimination (para (h));
  • that the respondent ‘undergo an audit of specific policies or practices as determined by the court’ (para (l)); and
  • that the respondent make ‘regular progress reports’ to the court or to a relevant constitutional institution regarding implementation of the court’s order (para (m)).

[59] The fact that these specific orders are not expressly mentioned in s 50(2) of the Employment Act does not mean that the Labour Court may not grant them as ‘appropriate orders’ that are ‘just and equitable in the circumstances’.

It would be strange indeed if orders expressly sanctioned as appropriate in terms of s 21(2) of the Equality Act were found to be inappropriate and not just and equitable for purposes of s 50(2) of the Employment Act.

[60] In AS v Neotel, supra, Spilg J discussed whether, when the Equality Court’s jurisdiction is challenged in terms of s 5(3) of the Equality Act, one should have regard only to the cause of action or also to the relief claimed. He favoured the second of these approaches (paras 28-38), differing in this respect from Strydom v Chiloane, supra.

The distinction is only important if a complainant seeks relief from the Equality Court which would be beyond the power of the Labour Court to grant. I am by no means certain that there is any such disjunct between the courts’ respective powers.

[61] In para 51 of Neotel Spilg J quoted certain relief claimed by the complainant in that case which he thought was beyond the power of the Labour Court. In regard to prayer 2.2 quoted by the learned judge, I am doubtful whether s 21(2)(m) would have empowered even the Equality Court to grant that relief.

The Equality Court can order a respondent (in that case, Neotel) to make progress reports to a court or other institutional body regarding the implementation of the court’s order; the Equality Court is not expressly empowered to compel another institution – in that case, SAPS – to investigate and report back to the court.

[62] In regard to prayer 2.3 quoted by the learned judge (a referral to the Director of Public Prosecutions to make a decision on possible prosecution), I do not see why the Labour Court should be precluded from making a like order if such were considered appropriate, just and equitable.

It is not an infrequent occurrence for civil courts, when delivering judgment, to refer matters uncovered by the case to other bodies for investigation and possible action.

[63] In the event, the basis for Spilg J’s finding that the Equality Court’s jurisdiction was not ousted by s 5(3) was that the applicant’s complaint (one of sexual harassment) did not arise in the workplace or from an ‘employment policy or practice’ (paras 52-53). In that respect AS v Neotel obviously differs from the present case. Furthermore, and even if it were so that there are some orders the Equality Court could grant which the Labour Court could not, the present case does not seem to me to involve any such orders.

[64] The applicants’ attorney said in argument that the workers’ wives and children might wish to join the litigation so that their voices could be heard. This was possible, he submitted, in the Equality Court but not in the Labour Court. The system of single-sex hostels is self-evidently disruptive of family relations, and may bear heavily not only on the men housed in such hostels but also on their wives and children from whom they are separated. This is one of the applicants’ central themes.

[65] In whatever forum the present case is heard, the applicants will be entitled to call their wives and children as witnesses to testify about the hardship of geographic separation. I doubt if such evidence would be contested. The family members do not need to be joined for their voices to be heard. It is not clear to me that they would be entitled to be joined. The alleged discrimination in the present case is directed at the applicants in their capacity as employees.

[66] The fact that such discrimination impacts on the employees’ families does not mean that OV is discriminating against the family members. Many cases of unfair discrimination against employees will have a negative effect on family members of the employees.

For example, if black employees were paid less than white employees for equal work, or were refused opportunities for promotion on account of their race, the households of the black workers would have less money to meet their needs. The fact that there is this knock-on effect on family members cannot mean that the procedures laid down in the Employment Act need not be followed. At any rate, I do not currently have before me a case in which non-employees, such as wives and children, are alleging that OV has unfairly discriminated against them.

[67] Finally, I do not think it is correct that there is greater scope for joinder of family members in the Equality Court than in proceedings before the CCMA and the Labour Court.

Persons with a substantial interest in the subject matter of litigation in the CCMA and the Labour Court may, even though they are not employees, apply to be joined in such proceedings (see CCMA rule 26(1)(a) and Labour Court rule 22(2)(a)).

I do not think that the Equality Court, in exercising its power of joinder in terms of regulation 10(5)(c)(v), would be guided by considerations very different to those which would govern joinder in the CCMA and the Labour Court.

[68] The applicants’ attorney urged me to pay heed, in my interpretation of the Equality Act, to the Act’s preamble, the objects set out in s 2, the principles governing interpretation contained in s 3, and the ‘guiding principles’ listed in s 4. I have tried to do so. The question, however, is not whether in general the applicants’ claims constitute unfair discrimination as defined in the Equality Act but whether the jurisdiction of the Equality Court is excluded by s 5(3).

The language of that section is not ambiguous.

[69] I thus conclude that the Equality Court does not have jurisdiction to entertain this matter and the proceedings must be dismissed. I do not think I have the power to refer the case to another forum in terms of s 20 of the Equality Act. The Equality Court’s referral power presupposes that it has jurisdiction. In terms of s 20(1), the section as a whole applies only to proceedings ‘under’ the Equality Act. That must mean proceedings which can properly be instituted in the Equality Court. And as appears from s 20(8), the matter must be one which the Equality Court can adjudicate if the alternative forum fails to deal with the matter timeously or resolve it successfully.

[70] As to costs, s 21(2) provides that after ‘holding an inquiry’ the Equality Court can make an appropriate order, including an appropriate order as to costs against any party to the proceedings (s 21(2)(o)). Since I have no jurisdiction to hold an inquiry, this provision does not strictly apply.

On the assumption that a power to order costs in relation to a preliminary jurisdictional determination could be sourced in s 21(5), which gives the Equality Court all ancillary powers ‘necessary or reasonably incidental’ to the performance of its functions, it would not be appropriate to make a costs order in the present case. Since the Equality Act gives effect to fundamental constitutional rights, the Biowatch principle applies. Neither OV nor the DHS sought a costs order.

[71] I thus make the following order:

The proceedings instituted in this court by the applicants under the above case number are dismissed with no order as to costs.

Court summary