Mulaudzi and Another v MEC: Infrastructure Development and Property Management (Gauteng Provincial Government) (J56/2025) [2026] ZALCJHB 248 (11 August 2026)

Nnditsweni Ruphas Mulaudzi had been employed by the respondent since 1996 as a messenger, while Rachel Bongi Khumalo had been employed since 1987 as a cleaner. Both employees were based in Pretoria. In approximately 2022, they became aware that employees performing the same or similar work in Johannesburg were receiving higher remuneration. They identified Ms Mashishi, who was employed in Johannesburg, as a comparator. At the relevant time, Ms Mashishi earned R17,857.87 per month, whereas Mulaudzi and Khumalo each earned R14,216.50 per month. The applicants contended that the difference in remuneration was attributable to their geographical location and constituted unfair discrimination.

Because the applicants earned below the applicable Basic Conditions of Employment Act 75 of 1997 (BCEA) threshold, the Commission for Conciliation, Mediation and Arbitration (CCMA) had jurisdiction to determine the dispute. The arbitrator found in favour of the applicants and concluded that the geographical distinction in remuneration amounted to unfair discrimination in terms of the Employment Equity Act 55 of 1998 (EEA). The arbitrator effectively treated geographical location as an “arbitrary ground” contemplated by section 6(1) of the EEA.

The applicants approached the Labour Court in terms of section 158(1)(c) of the Labour Relations Act 66 of 1995 (LRA), seeking an order making the arbitration award an order of court. The application was unopposed.

The Court identified a fundamental legal difficulty with the arbitrator’s conclusion. The Court questioned whether a difference in remuneration based solely on geographical location could constitute unfair discrimination under section 6(1) of the EEA, and, more particularly, whether geographical location could properly constitute an “arbitrary ground” of discrimination. The applicants were therefore afforded an opportunity to file supplementary heads of argument addressing this issue before the Court determined whether the award should be made an order of court.

Discussion

The Court began by emphasising that differentiation does not automatically amount to discrimination. It relied on the framework established by the Constitutional Court in Harksen v Lane NO and Others, which applies to unfair discrimination claims under the EEA. Where differentiation occurs on a listed ground, discrimination is established more readily. However, where reliance is placed on an unlisted ground, the enquiry is whether the ground is objectively based on attributes or characteristics that have the potential to impair fundamental human dignity or to affect persons adversely in a comparably serious manner.

The Court stressed that section 6(4) of the EEA requires a connection or nexus between the difference in employment terms and a prohibited ground of discrimination. A mere difference in remuneration is therefore not, in itself, discrimination. Where an applicant relies on an unlisted “arbitrary ground”, section 11(2) places the burden on the applicant to establish, on a balance of probabilities, that the conduct is irrational, constitutes discrimination and is unfair.

The Court considered the developing jurisprudence on the meaning of “any other arbitrary ground”. It relied on Naidoo and Others v Parliament of the Republic of South Africa, which adopted a narrow interpretation. The mere fact that conduct is arbitrary or irrational does not create a new ground of discrimination. Rather, the ground itself must be analogous to the listed grounds. The listed grounds have a common underlying characteristic: they concern attributes or characteristics associated with the intimate dimensions of human identity and have the potential to demean or impair human dignity. The EEA is therefore not intended to provide a remedy for every form of unfair or irrational treatment in the workplace.

The Court also considered the Labour Appeal Court’s decision in Minister of Correctional Services and Others v Duma, which dealt with a claim involving geographical location. Duma recognised that geographical location could potentially form the basis of an unfair discrimination claim, but emphasised that a proper factual foundation must first be established. The employee had to demonstrate, amongst other things, that the work performed was sufficiently comparable and that geographical location was in fact the reason for the difference in remuneration. The Court in Mulaudzi noted that Dumadid not finally determine that geographical location, once established, necessarily constitutes an arbitrary ground that impairs dignity.

Applying the Harksen test, the Court accepted that there had been differentiation: the applicants were paid less than their Johannesburg comparators. However, the existence of differentiation was only the starting point. There could potentially be rational explanations for geographical differences in remuneration, such as different market conditions, cost-of-living considerations or operational requirements. More importantly, even if the differentiation were irrational, the applicants still had to establish that it constituted discrimination on a ground contemplated by section 6(1) of the EEA.

The Court found that geographical location, on the facts of this case, was not analogous to the listed grounds of discrimination. Being employed in Pretoria rather than Johannesburg was regarded as a circumstance of employment rather than an attribute or characteristic attaching to the employees themselves. It did not categorise, marginalise or oppress the applicants in a manner comparable to the listed grounds and there was no established connection between their geographical location and an impairment of their inherent dignity.

Importantly, the Court did not hold that geographical location could never constitute a discriminatory ground. It recognised that geographical distinctions can, in an appropriate factual context, be deeply discriminatory. The Court referred to the geographical restrictions imposed during apartheid through legislation such as the Group Areas Act and the creation of designated homelands. Those geographical distinctions were connected to racial classification and severely restricted people’s freedom of movement and access to employment, education, housing and other opportunities. Such a geographical distinction could clearly impair human dignity. The present case, however, involved no comparable connection between geography and an intimate or protected attribute.

The Court therefore concluded that the applicants might have had a legitimate grievance concerning unequal pay, but that an unequal-pay grievance is not necessarily an unfair-discrimination claim under the EEA. The arbitrator had effectively conflated unequal remuneration with unfair discrimination and had failed to establish the required dignity-based nexus between the geographical distinction and a prohibited or analogous ground. The arbitrator’s finding that geographical location constituted an arbitrary ground of discrimination was consequently fundamentally wrong in law.

Having found that the arbitration award was fundamentally flawed, the Court held that it would be inappropriate to exercise its discretion under section 158(1)(c) to make the award an order of court. The Court emphasised that it was not sitting as a reviewing court. No review application had been brought, the CCMA and commissioner had not been joined, and no proper case had been made out for the review and setting aside of the award.

The Court acknowledged the importance of the finality of CCMA arbitration awards. Section 143(1) of the LRA provides that an arbitration award is final and binding and may be enforced as if it were an order of the Labour Court. The statutory scheme favours the expeditious and accessible resolution of labour disputes and limits judicial intervention in arbitration awards. The Court therefore distinguished between refusing to make an award an order of court and setting the award aside. The former was within its powers under section 158(1)(c), while the latter was not competent in the absence of a proper review application.

This produced an unusual result. “Therefore, while the Court cannot make the arbitration award an order of court, for the reasons set out above, it similarly will not set the award aside, resulting in the anomalous situation that while the award is not enforceable as though it were an order of court, it nonetheless remains alive.”

The Labour Court dismissed the application to make the arbitration award an order of court. There was no order as to costs.

Written by By Nicolene Erasmus, Director, Labour Guide