Ntombela and Others v SARS [2026] ZALCD 2

Court: Labour Court of South Africa, Durban

Judge: Seery AJ

Date of Delivery: 26 January 2026

Factual Matrix

The plaintiffs alleged unfair discrimination in that they were paid less than comparator employees performing the same or work of equal value. They pleaded that the defendant's conduct in maintaining the disparity constituted unfair discrimination on an "arbitrary ground" impacting their dignity. The defendant excepted to the Statement of Claim, alleging it failed to identify any listed or unlisted ground of discrimination.

Reasoning for the Finding

"[5] On a reading of the SOC in toto the alleged arbitrary ground relied upon is not identified. In order for the defendant to be placed in a position to properly defend the action, what must be pleaded to support an allegation of discrimination is a ground of discrimination." [para 5]

"[6] In Naidoo and Others v Parliament of the Republic of South Africa the court found that to establish discrimination an arbitrary ground must be identified, and to merely allege arbitrariness is not enough." [para 6]

"[7] In short, the plaintiffs are required to identify and plead a ground that is based on attributes and characteristics that have the potential to impair their dignity or affect them in a comparably serious manner, and that this ground must refer back to the specified grounds listed in section 6(1) of the Employment Equity Act." [para 7]

"[8] The plaintiffs have not done this, and therefore the exception must be upheld." [para 8]

Finding/Order

1. The late delivery of the plaintiffs' Statement of Claim was condoned.

2. The defendant's exception was upheld.

3. The plaintiffs' Statement of Claim was set aside.

4. The plaintiffs were granted leave to deliver an amended pleading within 10 days.

5. No order in respect of costs.

The Court held that a plea of discrimination on an arbitrary ground requires the plaintiff to identify and plead the specific ground relied upon; a bare allegation of arbitrariness is insufficient to disclose a cause of action.