25 November 2019
The Equality Court, sitting in the Cape High Court, says it does not have jurisdiction to hear a case of alleged discrimination between Oak Valley and its workers.
“I do not think I have the power to refer the case to another forum in terms of section 20 of the Equality Act,” said Judge Owen Rogers.
The applicants – about 45 men from the Eastern Cape — live in a single-sex hostel on Oak Valley, a fruit, wine and flower farm in Grabouw. They claim they are discriminated against because local, mostly coloured, workers are allowed to stay with their families on the farm.
On Friday, about 15 workers listened attentively from the public gallery to the Xhosa interpreter as Judge Rogers read out his brief judgment.
These workers want the court to declare that not providing family accommodation to them is unlawful. If the case is heard in the Labour Court, which is what Oak Valley’s management wants, the hearing will be confined to much narrower issues of labour law. If heard in the Equality Court, the workers could have argued more broadly about the impact of systemic problems rooted in apartheid practises.
“The heart of the complaint is the alleged inadequacy and inhumanity of accommodation in the hostel … One might argue that a private employer is under no duty to provide accommodation to employees … If the employer offers accommodation as an employment benefit, an employee regards it as inadequate and undignified, he or she is not bound to accept the offer. It may be going quite far to say that the employee is entitled to accept the offer of an inadequate and undignified accommodation and then assert that such accommodation violates his or her fundamental rights and that the employer must provide materially superior and more extensive accommodation,” said Judge Rogers.
It is not yet clear whether the workers will be approaching the Labour Court with this matter.