Legal Articles

It is trite in legal practice that the Courts pronounce judgments based on the issues and arguments raised before them by the parties. The Court may seek clarity on certain points from the witnesses, legal representatives or the parties themselves, but what the Court will not do is to solicit a specific pleading (point not at issue) from either of the parties alternatively to seek the raising of an issue that has not been raised by either of the parties during the pleadings stage or the trial itself, as doing so would be tantamount to the Court getting involved or taking sides in the matter before it.

In the event that a party intends to amend their pleadings, the Rules governing civil proceedings allow for amendments subject to procedures. A party may not raise new issues that go into the merits of the matter on appeal, and therefore it is important that parties ensure their pleadings are well thought out with all the relevant facts and authorities being pleaded.

The immediately above proved key in the case of Adams Damon v City of Cape Town CCT 278/20 wherein the majority judgment dismissed the appeal citing that the Applicant’s case had been premised on a posited question that had already been dealt with by the Labour Appeal Court and the pleadings do not contain a point of issue which could have better sustained the Applicant’s case before the Constitutional Court (Concourt).

Mr Damons (Applicant) had been employed as a firefighter by the City of Cape Town (Respondent) since 2001. Around 2010 during a fire drill, he was permanently injured owing to the employer’s disregard for safety measures during that particular fire drill. The injuries resulted in him not being able to execute duties that require hefty physical activity. The employer had introduced, in 2009, its Fire and Rescue Advancement Policy (the policy) after which Mr Damons applied for a promotion but he could not be considered as physical fitness was considered an inherent requirement of the job.

An incapacity hearing in 2012 concluded that Mr Damons could be accommodated in the Fire and Life Safety Section, and after deliberations with his trade union (SAMWU) Mr Damons was transferred to do administrative and educational duties with his salary scale, title and future promotions remaining applicable. He then applied for promotion to the position of senior firefighter and requested that the requirement for physical fitness be relaxed on his part, to which the City of Cape Town declined citing that the requirement was inherent for the job.

Aggrieved, Mr Damons referred the matter to CCMA (conciliation) and SALGBC (arbitration) whereat the arbitrator held that while it is not in good interest to keep the employee in one position for a long time, the bargaining council has no jurisdiction as the employer pleaded that the requirement is inherent for the job.

Mr Damons took the dispute to the Labour Court, which held that the employer in applying the policy to Mr Damons as is, amounted to unfair discrimination, the reliance being on Section 6 (1) of the Employment Equity Act 55 of 1998. On appeal, the Labour Appeal Court endorsed the decision in TDF Network Africa (Pty) Ltd v Faris 2019 40 ILJ 326 (LAC) wherein it was held that a requirement is inherent if it is rationally connected to the performance of the job and necessary for the fulfilment of the legitimate work-related purpose. The Labour Appeal Court upheld that to the extent that there is differentiation between Mr Damons and active firefighters, it was justified by rational requirements in the policy and inherent requirements for the position of a senior firefighter.

On appeal to the Concourt, the Applicant’s contention was whether it was justified for the employer to refuse him advancement opportunities based on his disability which was caused by the employer’s own disregard for safety precautions. The majority judgment upheld the Respondent’s defence based on Section 6 (2) (b) of the Employment Equity Act 55 of 1998. As one of the grounds for its finding, the Court held that the question posited before the Court by the Applicant had been dealt with by the Labour Appeal Court, whereas the issue which was not pleaded, should have been with regard to the Respondent’s failure to establish a policy for the advancement of non-operational firefighters, a category applicable to the Applicant. It therefore dismissed the appeal.

It is important that parties ensure their pleadings are well thought out with all the relevant facts and authorities being pleaded.

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