Intuitively, the answer may seem obvious. South African law has a long history of guarding against the splitting of claims. Yet, despite this established principle, the legislature continues to regulate seemingly overlapping subject matter through different statutes, each with its own remedies and dispute-resolution forums. This article explores what happens when a party pursues every available avenue to resolve what is, in substance, the same dispute.
When workplace disputes arise, it can be difficult to know where to turn. The law often limits the direction of legal proceedings based on the relief sought and how it is packaged.
Obtaining legal advice only after proceedings have commenced may leave parties facing self-imposed limitations in the dispute resolution process that could have been avoided from the outset.
Here we ask the question of whether, after your matter has been dealt with in terms of the labour-law dispute resolution framework, you are still able to pursue an employment-related complaint through the Equality Court under the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda).
The question before the High Court in the case of Selma Behari v Eskom Holdings SOC Limited was whether the court, sitting as an Equality Court, had jurisdiction to hear a labour dispute that had been repackaged as an unfair discrimination dispute.
This case will help us understand whether a complainant can repackage their employment dispute as an equality claim.
One dispute, every possible avenue
Selma Behari, the applicant, was an employee of Eskom Holdings Soc Limited (Eskom) at the time that the dispute arose. The applicant first referred the dispute to the CCMA where the dispute was categorised as an unfair labour practice and not one of unfair discrimination.
The applicant recorded that her employer did not make sufficient attempts to reasonably accommodate her in the working environment because of her mental health condition, borderline personality disorder.
The Employment Equity Act 55 of 1998 (EEA) requires employers to reasonably accommodate persons from designated groups as an affirmative action measure. Designated groups refer to black people, women, people with disabilities and people who have long-term or recurring physical, mental, intellectual or sensory impairments, which includes persons with mental health conditions.
Joon Chong and Dario Milo 12 Nov 2025 The applicant alleged that her toxic work environment caused her mental health to decline and that, because she was a victim of a crime that was perpetrated against her, her health seriously deteriorated as a result.
The applicant was frequently absent from work, and she was placed in various assistance programmes. This eventually led to an incapacity investigation where the applicant was represented by her trade union. The applicant did not dispute that she suffered from a permanent psychiatric condition, and it was common cause that she was partially incapacitated.
Despite the applicant’s complaints, upon the completion of all the employment-related investigations and processes, the applicant signed a letter of acceptance regarding a transfer (demotion), along with the salary ranking and scale that was associated with it.
Furthermore, the applicant signed a settlement agreement in full and final settlement of the employment dispute when it was determined before a commissioner at the CCMA. The CCMA determined that the applicant had not been subjected to any unfair labour practice.
The issue remained that the applicant insisted that she did not voluntarily settle the matter despite having signed the settlement agreement.
In addition to the dispute resolution proceedings at the CCMA, the applicant also filed a complaint with the South African Human Rights Commission (SAHRC), as well as the Commission for Gender Equality (CGE).
In her complaint to the SAHRC, the applicant alleged that she was wrongfully subjected to an incapacity investigation and concurrent disciplinary proceedings. The SAHRC determined that they are unable to overturn a decision by the CCMA as the SAHRC lacks jurisdiction over human rights violations and discrimination in the workplace and that such a dispute falls squarely within the jurisdiction of the CCMA.
Similarly, the CGE refused to consider the applicant’s complaint.
The term jurisdiction “denotes the power or competence of a particular court to hear and determine an issue brought before it”. This means that certain legal issues may only be resolved in specific legal forums.
The CCMA and Labour Court, for example, are designated forums for employment- and labour-related disputes.
Can a labour dispute be recast as unfair discrimination?
Unwilling to accept the outcome at the CCMA alongside the SAHRC and CGE’s refusal to consider her complaint, the applicant approached the High Court to make a determination in respect of whether she had been unfairly discriminated against on two grounds, namely that the she was demoted due to her mental disability and that Eskom used the EEA as a means to systematically discriminate against the applicant.
The applicant brought this application in terms of Pepuda based on unfair discrimination – contrary to and inconsistent with the initial unfair labour practice claim in the CCMA.
The intention was to have the High Court set aside the settlement agreement concluded at the CCMA. She sought to be reinstated to her pervious ‘work-grade’ and salary level, as well as reimbursement for the financial hardship she allegedly suffered as a result of the demotion.
The issue before the High Court was to determine whether the court has jurisdiction in instances where complaints concern “alleged violations of rights in the context of an employer-employee relationship and in circumstances where the applicant has enjoyed several bites at the proverbial cherry”.
The court had to consider whether protection under Pepuda is triggered in these circumstances, thereby engaging this court’s jurisdiction.
As noted above, jurisdiction “denotes the power or competence of a particular court to hear and determine an issue brought before it”. This ensures that the court only grants remedies that legislation empowers them to grant for specific matters within specific contexts.
Equality rights, but not the equality court
Section 1(viii) of Pepuda defines “discrimination” as:
“…any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly;
(a) imposes burdens, obligations or disadvantages on; or
(b) withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds...”
The court highlighted that Pepuda must be purposively interpreted within the constitutional context by giving effect to the spirit of all our constitutionally protected rights. Relief claimed under the equality realm may not be used where there exists a clear, compelling alternative remedy, which the High Court noted was readily available to the applicant.
The court further noted that the applicant’s complaints were more adequately addressed and protected by labour legislation, and that the employer-employee procedures had been properly followed.
Bradley Workman-Davies 22 Aug 2025 It was confirmed that the common law and existing legislation provide powerful vindications in respect of all of the applicant’s rights, rendering the equality relief inappropriate in the circumstances. It would therefore not be just and equitable to support an argument for equality relief where labour laws are sufficiently protective of the complainant’s rights.
Our courts have been very clear that constitutional interference or relief only be awarded where existing law is inadequate to vindicate a rights violation which means that, where an existing legal remedy exists, a claimant must have recourse to that remedy first and foremost.
It was expressly recorded that it is not legally permissible to treat the labour legislation and the provisions in our constitution as interchangeable – the court said “they are not”.
The court pointed out that the applicant’s papers did not put sufficient evidentiary material before the court to prove that the respondent’s actions, or lack of action, amounted to discrimination.
It was found that the applicant would unlikely prove the likelihood of a recurrence of the alleged unfair discrimination to warrant the relief sought. As such, the alleged acts of unfair discrimination did not confer jurisdiction on the High Court, sitting as an Equality Court.
The court concluded their judgment by noting that their decision was determined on the limited issue of jurisdiction and as a result dismissed the applicant’s application.
The judgment does not suggest that employees are without protection against discrimination or unfair treatment – rather, it enforces the importance of understanding which rights have been infringed, which legal remedy is available and the most appropriate in the circumstances, and in which forum that remedy is best pursued.
In law, you do not always get to change your route simply because where the first one took you did not produce the desired outcome.
Choose your legal route wisely
The Behari v Eskom judgment reminds us that the legal route chosen matters just as much as the destination sought.
For employees and employers alike, the message is clear: obtain appropriate advice before commencing proceedings, select the correct forum, and understand the consequences of the claims advanced and the agreements signed.
As this matter demonstrates, how a case is framed at the outset often determines the course it ultimately follows.
The practical takeaway is to choose a process that preserves meaningful control over the dispute and does not leave its progress dependent on the availability of an overburdened official.
