In a decision handed down by the Labour Court on 2 September 2014, inBandat v De Kock and Another (JS832/2013) [2014] ZALCJHB 342 (2 September 2014), the court was required to decide whether the Employment Equity Amendment Act, No 47 of 2013 (Amendment Act) applies retrospectively to matters instituted before its enactment.

In this case, Bandat instituted action against her employer, De Kock, for an automatically unfair dismissal and discrimination under the Employment Equity Act, No 55 of 1998 (EEA) in that De Kock had allegedly sexually harassed her.

After the close of Bandat's case, De Kock applied for absolution from the instance. The issue of the onus in Bandat's discrimination claim was complicated by the Amendment Act, which came into effect on 1 August 2014, and which was before the present matter was heard but after it was instituted.

Prior to the Amendment Act, where unfair discrimination was alleged, the duty was firstly on the complainant to establish the existence of discrimination, before the onus could shift to the employer to prove that the discrimination was fair.

Following the enactment of the Amendment Act, all the employee party has to do is to allege that discrimination exists on one of the grounds specified in s6(1) of the EEA, and the onus would squarely be on the employer party to prove that it does not exist. If this amended provision applied in the present case, then De Kock's absolution application could not succeed, as he would have the overallonus of proving that the allegation of discrimination does not exist or is justifiable.

The court held that there was nothing in the EEA or in the Amendment Act which indicated that it had to be applied retrospectively. As such, the presumption that had to apply was that it was not retrospective and that the existing procedure prior to the enactment of the Amendment Act had to apply. There was no indication in the EEA of any intention that the amendment applied to existing and pending proceedings. There were equally no compelling reasons of equity and fairness necessitating a departure from the general principles.

The court accordingly held that the amended provisions of s11 of the EEA, dealing with the onus of proof in discrimination claims, did not apply in this instance and that the onus to prove that Bandat had been discriminated against, in the first place, rested on her.

In the context of the current matter, Bandat was required to show the existence of her being sexually harassed by De Kock. The court found that she failed to provide sufficient evidence to even establish a prima facie case that she had been discriminated against by De Kock. Accordingly, De Kock's application for absolution was successful.

Written by Kirsten Caddy, Senior Associate, Employment, Cliffe Dekker Hofmeyr