THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable

CASE NO: 461/06

In the matter between :

RAOL INVESTMENTS (PTY) LTD
t/a THEKWINI TOYOTA
Appellant

- and -

ZWELINJANE MADLALA
Respondent
___________________________________________________________________________
_
Before:
SCOTT, FARLAM, NUGENT, JAFTA & MAYA JJA
Heard:
10 SEPTEMBER 2007
Delivered:
27 SEPTEMBER 2007
Summary:
Dismissal of employee – automatic unfairness – differentiation in
treatment not necessarily racial discrimination.

Neutral citation:
This judgment may be referred to as Raol Investments v Madlala
[2007] SCA 120 (RSA)
___________________________________________________________________________

NUGENT JA

NUGENT JA:

[1] The respondent, who was employed by the appellant (the company) for
about 15 years, was dismissed for assaulting his immediate supervisor. After
protracted proceedings brought by the respondent to contest the fairness of his
dismissal his claim was upheld by the Labour Court, which ordered that he be
reinstated. An appeal by the company to the Labour Appeal Court (Zondo JP,
Nkabinde and Davis AJJA) was not successful (except in a limited respect
that is not material for present purposes). The company now applies for leave
to appeal to this court. The judges who considered the petition referred it for
oral argument1 with directions that the parties prepare to argue the merits of
the appeal if called upon to do so. The respondent, apparently for lack of
funds, was not represented before us.

[2] There is some dispute concerning the details of the incident that gave
rise to this matter but for present purposes I will accept the evidence that was
tendered on behalf of the company. One afternoon the service manager, Mr
van Rooyen, who was the respondent’s immediate supervisor, while driving
onto the premises of the company, accidentally drove over the respondent’s
foot. Van Rooyen proceeded to drive a further twenty or so metres where he
parked his vehicle. He alighted, called out an apology to the respondent, and
proceeded to his office. He sent another staff member to enquire whether the
respondent had been injured and it was reported to him that he had not.

[3] The respondent was aggrieved at what he thought to be Van Rooyen’s
indifference to what had occurred. The following morning Van Rooyen was
walking to the service department when he encountered the respondent and
another employee. He greeted the respondent who responded with a vulgarity.
Van Rooyen replied ‘the same to you’ and turned away to walk to his office.

1 See s 21(3)(c)(ii) of the Supreme Court Act 1959.

The respondent approached Van Rooyen from behind and kicked him in the
small of his back, whereupon Van Rooyen turned around, and the respondent
threw a punch in his direction that grazed him on the shoulder. Van Rooyen
reported the matter to one of his seniors, a disciplinary enquiry was held, and
the respondent was dismissed.

[4] Had that been all that occurred the dismissal of the respondent ought
not to have been exceptionable. Assaults at the workplace are unacceptable
and will generally justify immediate dismissal.2 (The company’s disciplinary
code expressly provided for that sanction.) However, some two years earlier
the respondent had himself been the victim of an assault, which had not
resulted in his assailant being dismissed, and he was aggrieved at what he
considered to be unequal treatment.

[5] According to the respondent the earlier assault occurred after Mr
Ferreira, who was at the time a salesman employed by the company,
accidentally struck the respondent on the elbow with a metal pipe. The
respondent reacted with a vulgarity whereupon Ferreira punched him. The
two then came to grips and wrestled until the respondent slipped and fell to
the floor. Ferreira struck the respondent’s head on the floor, breaking his
teeth, and the two were then separated by another employee.

[6] It is not disputed that the respondent did not lodge a formal complaint
to management in consequence of the assault upon him by Ferreira and
accordingly no disciplinary enquiry was held. (Why the respondent failed to
do so is in dispute but that is not material.) Instead it was Ferreira who
complained. He wrote to Van Rooyen lodging what he called a ‘formal
complaint against [the respondent] for verbal and racial abuse’. The matter

2 John Grogan: Dismissal, Discrimination and Unfair Labour Practices 241

was not investigated further but Ferreira was given a warning and there the
matter ended.

[7] The Labour Appeal Court found that the disparate treatment of Ferreira
and the respondent respectively was unjustified, which, by itself, would
ordinarily have justified a finding that the dismissal of the respondent was
unfair.3 However the court (in separate judgments of Nkabinde AJA with
whom the remaining members concurred, and of Zondo JP with whom
Nkabinde AJA concurred) went on to find that the dismissal of the respondent
was automatically unfair (as contemplated by s 187(1)(f) of the Labour
Relations Act 1995) because the disparate treatment was racially based.4

[8] Discrimination against an employee on the grounds of race or other
arbitrary grounds clearly has no place in employment practices,5 quite apart
from being unlawful. But while a court must be vigilant to ensure that that
does not occur, equally it must be wary of concluding too hastily that an
employee has been discriminated against on grounds of race merely because
disparity of treatment coincides with racial disparity.

[9] There seems to be some uncertainty in the labour courts as to where the
burden lies of establishing that the reason for a dismissal either was or was
not discriminatory6 but it is not necessary to resolve that question in the

3 See the discussion of disparity of treatment in SA Commercial Catering & Allied Workers Union v Irvin &
Johnson Ltd (1999) 20 ILJ 2302 (LAC) para 29; Cape Town City Council v Masitho (2000) 21 ILJ 1957
(LAC) paras 11-14; Chemical Energy Paper Printing Wood & Allied Workers Union v Metrofile (Pty) Ltd
(2004) 25 ILJ 231 (LAC) paras 35-38.
4 That subsection provides that a dismissal is automatically unfair if the reason for the dismissal is
‘that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground,
including, but not limited to race …’
5 See the judicial attitude to racial discrimination as it was expressed in Crown Chickens (Pty) Ltd t/a
Rocklands Poultry v Kapp (2002) 23 ILJ 863 (LAC).
6 Mafomane v Rustenburg Platinum Mines Ltd [2003] 10 BLLR 999 (LC) para 57; Mashava v Cuzen &
Woods Attorneys (2000) 21 ILJ 402 (LC); Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) para
28; Janda v First National Bank (2006) 27 ILJ 2627 (LC) paras 13-23. See, too, Martin Brassey:
Commentary on the Labour Relations Act (Rev. Ser. 2 2006) A8-142; John Grogan: Workplace Law 9 ed p.
148; John Grogan: Dismissal, Discrimination and Unfair Labour Practices p. 202.

present case. In the present case the Labour Appeal Court reached its
conclusion as a matter of inference from the established facts. Quite simply, it
reasoned that because there was disparity of treatment that was not justified it
followed axiomatically that the company discriminated against the respondent
on the grounds of race.7

[10] That reasoning is unsound. Whether an employer has discriminated
against an employee on the grounds of race (or on any other arbitrary ground)
is a question of fact (whether the discrimination was unfair is a separate
question). Where the evidence establishes, as it does in this case, that the
employer treated employees differently on grounds other than race, there is
simply no scope to infer that the employee was discriminated against on the
grounds of race, because the reason for the disparate treatment has been
established to be something else. That the differential treatment was not
justified is immaterial to the factual enquiry as to the reason that it occurred.8
In this case the company said that its disparate treatment of the two
employees (Ferreira was white and the respondent is black) was because a
formal complaint was lodged by the victim of the assault in one case but not
in the other. Unless that explanation is rejected as no more than a
smokescreen to conceal a more sinister motive (and in my view there are no
proper grounds for doing so) there is simply no scope for an inference to be
drawn that conflicts with that explanation.

[11] Had the order that was made by the Labour Appeal Court been
dependent only upon that finding of racial discrimination it might well have
constituted sufficient reason for this court to interfere. But I think it is

7 See Nkabinde AJA para 24, apparently on the concession of counsel, and Zondo JP para 54.
8 I do not agree with the suggestion in Mafomane v Rustenburg Platinum Mines Ltd, above, at para 57.3, that
in the absence of a ‘rational and justifiable basis for differentiation’ an inference arises that the differentiation
was made on the ground of race. If it is established as a fact that the differentiation was not made on the
grounds of race then that fact is not altered by the additional finding that the grounds upon which the
employer differentiated were either not rational or not justifiable.

apparent from the reasoning of that court that even had it not found that the
dismissal was automatically unfair (on the grounds of racial discrimination)
the Labour Appeal Court would in any event have found that the disparity of
treatment alone rendered the dismissal unfair. Bearing in mind the test for
leave to appeal to this court as it was articulated in Fry’s Metals,9 I do not
think that good grounds have been shown for this court to entertain an appeal
from that value judgment, which is peculiar to the particular circumstances,
and raises no matter that is ‘objectively of such importance to the parties or
the public that special leave should be granted’.10

[12] Accordingly the application for leave to appeal to this court is refused.

__________________
R.W. NUGENT
JUDGE OF APPEAL
CONCUR:
SCOTT JA)
FARLAM JA)
JAFTA JA)
MAYA JA)

9 NUMSA v Fry’s Metals (Pty) Ltd 2005 (5) SA 433 (SCA) paras 42 and 43.
10 Fry’s Metals, above, para 43.