Phathuxolo Patrick Maqavana v Massbuild (Pty) Ltd and Others

The applicant, Patrick Mqavana, was employed by Massmart as a merchandise controller earning R12,500 per month. He discovered that Ms Melles, another merchandise controller, was earning R16,500 per month. On 15 November 2016, Mqavana referred a dispute to the CCMA alleging unfair discrimination under section 6 of the Employment Equity Act. The dispute initially appeared to be based on an arbitrary ground, but during arbitration it became apparent that Mqavana was alleging discrimination based on race. The senior commissioner dismissed the claim on 31 August 2017, finding that the employer had shown a rational, legitimate, fair and genuine reason for the pay disparity that was not discriminatory. The award was not challenged. On 20 November 2017, Mqavana made another referral to the CCMA, seeking condonation for late referral. The employer raised a jurisdictional point based on res judicata. Commissioner Nkopane upheld the jurisdictional objection on 18 January 2018 and declined jurisdiction without considering the condonation application. Mqavana launched a review application on 6 March 2018.

• Whether the commissioner was correct to decline jurisdiction on the basis of res judicata
• Whether grounds of unfair discrimination constitute separate and distinct causes of action such that determination of one ground does not bring res judicata into play when another ground is raised
• Whether listed and unlisted (arbitrary) grounds under section 6 of the Employment Equity Act constitute separate causes of action
• What constitutes a cause of action in unfair discrimination disputes
• Whether the jurisdictional ruling is reviewable

1. The application for review is dismissed. 2. Each party to pay its own costs.

Grounds of unfair discrimination under section 6 of the Employment Equity Act, whether listed or arbitrary, do not constitute separate and distinct causes of action. The grounds are pieces of evidence (facta probantia) necessary to prove the cause of action, which is unfair discrimination (facta probanda). The distinction between listed and unlisted grounds affects only the burden of proof, not the cause of action itself. Where a dispute alleging unfair discrimination has been finally determined through arbitration, the principle of res judicata bars a subsequent referral of the same dispute based on a different ground of discrimination, as it constitutes the same cause of action between the same parties concerning the same subject matter. The CCMA lacks jurisdiction to entertain a dispute that is res judicata.

The court expressed approval of the decision in Ndudula and others v Metrorail – Prasa (Western Cape) (2017) 7 BLLR 706 (LC), rejecting arguments that it was wrongly decided. The court noted that arbitrary grounds are not self-standing grounds and must be linked to one or more listed grounds to succeed. The court observed that the purpose of res judicata is to prevent repetition of lawsuits between the same parties, harassment of defendants by multiplicity of actions, and the possibility of conflicting decisions by different courts on the same issue. The court noted that equal pay for work of equal value is a specific aspect of workplace discrimination as recognized in clause 4.2 of the Code of Good Practice on Employment of Persons issued under section 54 of the EEA.

This case is significant in South African labour law jurisprudence as it clarifies the relationship between different grounds of discrimination under the Employment Equity Act and the doctrine of res judicata. It establishes that grounds of discrimination (whether listed or arbitrary) do not constitute separate causes of action but are evidence to prove unfair discrimination. The decision reinforces the finality of arbitration awards and prevents litigants from relitigating the same discrimination dispute by simply relying on different grounds. It confirms that the cause of action in discrimination cases is the unfair discrimination itself, not the specific ground upon which it is based. The judgment also reinforces the importance of the res judicata principle in maintaining legal certainty and preventing harassment through multiplicity of actions in labour disputes.