LINKS v SOUTH AFRICAN POLICE SERVICES [2026] ZALCCT 71

Date of Judgment & Seat of Court: 16 April 2026; Labour Court of South Africa, Cape Town

Name of Judge(s): Gandidze J

Summary of Factual Matrix: 

The applicant, a Legal Administrative Officer (LAO) in Legal Services at salary level 7, alleged unfair discrimination under section 6(1) and (4) of the Employment Equity Act, claiming he earned approximately R142,000 less than comparators (Tyatyeka at level 7; Captains Samuels and Oliver at level 8) despite performing identical functions. He relied on the arbitrary ground of "exploitation", alleging his skills, experience, and qualifications were undervalued. He also alleged indirect discrimination based on a policy prohibiting grade-skipping. At the close of the applicant's case, the respondent applied for absolution from the instance.

Summary of Findings:

"[8] Section 6(1) and (4) of the EEA provides as follows: 6 Prohibition of unfair discrimination (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground. ... (4) A contravention of subsection (1) that is based on one or more of the grounds listed in subsection (1) is unfair discrimination unless the employer proves that the discrimination is fair. (5) It is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of a particular job. (6) An employer must pay employees equally for the same work, substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination"

"[12] The court found that whether an arbitrary ground qualifies depends on whether it is based on attributes or characteristics that have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner. Therefore, the ground must relate to the attributes or characteristics of a person."

"[13] In Naidoo & Others v Parliament of the Republic of SA (Naidoo and Others), which Ms Foster, for the respondent, relied upon, the court stated that section 6(1) of the EEA is not a remedy for grievances without limits or a catch-all, or a panacea. Like section 9 of the Constitution, it provides a remedy on the grounds of intimate attributes, whether inherent or adopted. It stated that the ground must be similar to the listed grounds. The court also agreed with the view expressed by Garbers and Le Roux that anti-discrimination law cannot be used to solve all labour market ills."

"[19] Applying the test for what constitutes an arbitrary ground, there can be legal manoeuvring that can be relied upon to argue that exploitation is an attribute or characteristic that makes the applicant who he is, and that it impaired his human dignity in a comparable manner to a listed ground. Instead, exploitation is a term that describes the respondent's conduct, as the applicant sees it. That is not a ground analogous to those listed in section 6(1). Without an arbitrary ground that is related to attributes or characteristics of a person, the applicant's case cannot go beyond this stage of the proceedings."

"[24] That approach is in line with what the court stated in Association of Mineworkers & Construction Union on Behalf of Members v Aberdare Cables (Pty) Ltd & Others (Aberdare Cables), that: '[25]...It is trite that an applicant alleging discrimination must set out explicitly and disclose in no uncertain terms what the ground for discrimination is. The ground of discrimination is to be disclosed, and it is not an issue to be 'confirmed' or succeed with a claim for discrimination.'"

As such, the Court held that the arbitrary ground of "exploitation" relied upon by the applicant did not qualify as a ground for discrimination under section 6(1) of the EEA. Following Harksen v Lane NO and Naidoo v Parliament, an arbitrary ground must relate to attributes or characteristics of a person that have the potential to impair fundamental human dignity in a manner comparable to listed grounds. "Exploitation" describes the respondent's conduct, not an attribute of the applicant. Without a recognisable arbitrary ground, the applicant could not establish a prima facie case of discrimination, and absolution from the instance was appropriate.

Order:

"1. Absolution from the instance is granted. 

 2. There is no order as to costs."