Clint Links v The South African Police Services

The applicant, Mr Clint Links, employed by the South African Police Services (SAPS) as a Legal Administrative Officer (LAO) at salary level 7, instituted an unfair discrimination claim under section 6(1) and (4) of the Employment Equity Act 55 of 1998 (EEA). He alleged that he performed identical functions to three comparators (a colleague named Tyatyeka, who had advanced from salary level 5 to 7, and Captains Samuels and Oliver, both LAOs at salary level 8), yet earned approximately R142 000 less per annum. He sought retrospective payment of the differential since 2021, amounting to over R400 000 at the time of issuing the claim in 2024. The applicant relied on the unlisted arbitrary ground of ‘exploitation’, contending that his skills, experience and qualifications were undervalued and that his dignity was impaired. He also raised an indirect discrimination claim based on an alleged policy precluding employees from skipping salary levels. At trial, the applicant testified and called no witnesses. After cross-examination, the respondent applied for absolution from the instance. By early 2026 the applicant had been appointed to a level 7 LAO post.

• Whether 'exploitation' constitutes a recognisable arbitrary ground of unfair discrimination under section 6(1) of the Employment Equity Act.
• Whether the applicant established a prima facie case capable of defeating an application for absolution from the instance.
• Whether an applicant alleging discrimination on an arbitrary ground must plead an attribute or characteristic analogous to the listed grounds.
• Whether this court is bound by the 'narrow compass' approach adopted in Naidoo & Others (LAC) or the 'broad compass' approach in Mkalipi v Minister of Labour.

Absolution from the instance is granted. There is no order as to costs.

An arbitrary ground of unfair discrimination under section 6(1) of the Employment Equity Act must be an attribute or characteristic of the complainant (or with which the complainant is associated) that is analogous to the listed grounds and has the potential to impair fundamental human dignity in a comparably serious manner. Conduct-based labels such as 'exploitation' do not satisfy this requirement. A claimant must plead a specific, recognisable ground of discrimination; evidence cannot substitute for the failure to plead a valid ground. In the absence of a pleaded listed or recognisable arbitrary ground, a claim for unfair discrimination fails at the threshold, and absolution from the instance is warranted.

The court observed that the respondent ought ideally to have raised an exception under Rule 14 of the Labour Court Rules or a preliminary point at the commencement of trial, rather than proceeding to a full two-day hearing, because no evidence could cure the absence of a recognisable ground; this would have conserved judicial resources. The court also commented that the Labour Court in Mkalipi v Minister of Labour was wrong to adopt a 'broad compass' approach and failed to follow the binding precedent of the Labour Appeal Court in Naidoo & Others, and that once a defect in the pleaded ground is apparent, whether the discrimination was direct or indirect, or whether it was unfair, rational or justifiable, becomes academic.

The judgment reaffirms the stringent 'narrow compass' approach to arbitrary grounds under section 6 of the Employment Equity Act: a ground must relate to an attribute or characteristic of the complainant analogous to the listed grounds. It clarifies that labels such as 'exploitation', which describe employer conduct rather than personal attributes, do not qualify. The decision also underscores that the prohibited ground must be explicitly pleaded and cannot be established retrospectively through evidence. It expressly criticises and declines to follow Mkalipi v Minister of Labour, holding that the Labour Appeal Court in Naidoo & Others represents the binding authority on the test for arbitrary grounds. Furthermore, it highlights that where a claim suffers from a clear legal deficiency at the threshold, an exception or preliminary point should be raised to avoid wasteful litigation, though absolution remains appropriate if the trial proceeds.