Dyantyi v Norton Rose Fulbright South Africa Inc [2026] ZALCCT 187

Date of Judgment & Seat of Court: 30 October 2026, Labour Court, Cape Town

Case No: C21/2025

Name of Judge(s): Lagrange J

Summary of Factual Matrix:

The plaintiff, an attorney formerly employed in the defendant law firm's commercial property department, resigned with effect from 31 July 2024, alleging victimisation, bullying and racial harassment by a director and the firm's failure to protect her. She referred a constructive dismissal dispute under section 191 of the LRA to the CCMA, without marking the box for an unfair discrimination dispute under section 10 of the EEA; conciliation failed and the certificate of outcome described the dispute as a constructive dismissal. She then requested arbitration, and later, citing the CCMA's backlog, instituted action in the Labour Court claiming compensation and damages of about R5,7 million under section 50(2) of the EEA for unfair discrimination in the form of racial harassment.

The firm raised two special pleas: principally, that the discrimination dispute had never been referred to or conciliated by the CCMA, so that the Court lacked jurisdiction; alternatively, that the referral was out of time without condonation. By a joint practice note the parties agreed that the special pleas would be decided on the pleadings and annexures alone, without oral evidence.

Summary of Findings:

[24] ‘It is trite law that a pretrial agreement constitutes a binding contract that circumscribes the issues and confines both the parties and the court, as authoritatively affirmed recently by the Labour Appeal Court in Telkom SA SOC Ltd v Van Staden and others[1]’

[25] ‘The grounds for resiling from an agreement of this nature are the same grounds on which a party may resile from any other contract, such as fraud, misrepresentation, or duress. No application to resile from the agreement recorded in the joint practice note has been made, nor are contractual vitiating factors present. The practice note, which was signed by both parties, embodied a clear agreement setting parameters on what they could rely on in arguing the special pleas. In the absence of an amendment to that agreement or an application to resile from it, this court must respect the parameters agreed on.’

[26] ‘In argument, Dyantyi suggested that the firm attracted the burden of proof by raising the jurisdictional objection. However, as held in Malherbe v Britstown Municipality[3], the overall legal onus of proving a court’s jurisdiction to adjudicate a matter rests on Dyantyi as dominus litis. The firm’s plea amounts to a denial of the jurisdictional facts upon which Dyantyi relies. Prior conciliation is an indispensable statutory jurisdictional fact under section 10 of the EEA, and the burden of showing compliance rests squarely on Dyantyi.’

[27] ‘Section 10(2) of the EEA allows a party to an unfair discrimination dispute to refer it in writing to the CCMA, while section 10(5) requires the CCMA to try to resolve it through conciliation. Only where the dispute is still unresolved following conciliation does a party acquire the statutory right under section 10(6)(a) to refer it to this court for adjudication. The Constitutional Court in National Union of Metalworkers of SA v Intervalve (Pty) Ltd[4] held that conciliation is an indispensable statutory precondition to jurisdiction.’

[28] ‘In September and others v CMI Business Enterprise CC[6], the Constitutional Court laid down that the referral form and certificate of outcome constitute prima facie evidence of the nature of the dispute conciliated, but where the true dispute is alleged to be different, parties may adduce evidence to establish that fact. As pointed out above, in this instance, because the parties agreed to confine the evidence that could be relied on to the pleadings and documentation, that is the only evidence the court can consider.’

[29] ‘An examination of the CCMA referral form, Form LRA 7.11, and the certificate of outcome dated 11 September 2024 reveals that under item 3, Dyantyi marked the box for dismissal and identified the category as constructive dismissal under section 191 of the LRA, omitting to tick the box specifically provided for unfair discrimination under section 10 of the EEA. […] The certificate of outcome issued on 11 September 2024 expressly describes the unresolved dispute as constructive dismissal under section 186(1) of the LRA.’

[30] ‘Dyantyi submits that circling affirmative under item 11 and recounting allegations of bullying and victimization shows an intention to refer an unfair discrimination dispute under section 6(3) of the EEA. That contention ignores section 10(1) of the EEA, which provides that a dispute under section 10 excludes a dispute about an unfair dismissal. The legislature created two distinct and separate statutory causes of action. In a constructive dismissal referral, averments of bullying or racial abuse are pleaded to show the factual foundation that continued employment had become intolerable under section 186(1)(e) of the LRA. They do not transform an unfair dismissal referral into an independent claim under Chapter II of the EEA.’

[31] ‘While the Constitutional Court in September cautioned against formalistic reliance on administrative forms and held that the crucial inquiry is whether the true dispute became plain during conciliation, the facts in September were entirely different.’

[35] ‘In this instance, no evidence whatsoever was placed before this court to establish that a standalone unfair discrimination dispute under the EEA was ever raised, discussed, or conciliated at the CCMA, quite apart from the prima facie evidence of the dispute described in the referral form and certificate of outcome remains. Moreover, the legal ability of a qualified attorney of five years’ experience cannot be equated with the legal competency of the applicants in September’s case. Even if Dyantyi was not a labour law specialist, identifying the appropriate statutory claim and pleading the correct cause of action, ought not to have been beyond her abilities to research.’

[37] ‘Comparatively, in this matter the dispute Dyantyi referred to conciliation was an unfair constructive dismissal case under section 186 of the LRA. The case she referred to court subsequently was an unfair discrimination claim concerning alleged unfair discrimination up to the time of her resignation. In the CCMA referral she identified the date of her termination as the date the dispute arose. In her statement of case, she set out a litany of alleged acts of unfair discrimination beginning in June 2023 more than a year before the date of her termination on 31 July 2024.’

[38] ‘Dyantyi herself conceded in her amended statement of claim that she only opted to approach this court because of the delay in enrolling her constructive dismissal dispute by the CCMA. This supports an inference that the unfair discrimination claim referred to court was an attempt to pursue a different course of litigation, rather than reflecting a dispute she had always intended to pursue as a separate claim once the conciliation had failed to settle it.’

[39] ‘Conciliation cannot achieve its statutory purpose if an employer is deprived of the opportunity to conciliate the actual claim later instituted in court.’

[40] ‘On the evidence which the parties agreed could be considered in determining the special pleas, the unavoidable conclusion is that the unfair discrimination dispute referred to this court had not been contemplated as a distinct dispute referred simultaneously for conciliation together with the unfair constructive dismissal claim. Accordingly, it was not subject to a conciliation process, and the Labour Court lacks jurisdiction to entertain it, so the first special plea must be upheld.’

[41] ‘The firm had raised the second special plea relating to the failure to apply for condonation for the late referral, strictly in the alternative. It falls away in light of the special plea being upheld. In any event, if the first plea had not been upheld, in view of a belated condonation application being filed, that would have ceased to be an issue as it would be replaced by the need to decide the condonation application.’

[42] ‘The firm sought costs including the employment of two counsel. Although the referral was jurisdictionally defective, there is a genuine dispute between the parties about whether unfair discrimination based on race occurred. It is appropriate, considering principles of law and fairness, that each party bear their own costs.’

Relief: The firm's first special plea, that the unfair discrimination dispute had not been conciliated, was upheld and the referral was struck from the roll for want of jurisdiction. There was no order as to costs.

Judgment on SAFLII