Case Law Update

Share This Post


Case reference:

UASA obo Maritz & another v Ekurhuleni Metropolitan Municipality (LC) – 06 October 2022

Subject matter:

Equality – Equal pay for equal work.

Brief context:

Two white employees, both employed as Superintendents/Major at the Ekurhuleni Metropolitan Police Department (EMPD) alleged that they were unfairly discriminated against on account of their race. They based this allegation on the argument that while they performed similar duties as black Chief Superintendents, to which they compared themselves (their “comparators”), they are paid less.

In support of their complaint, they relied on Section 6(1) read with  Section 6(4) of the Employment Equity Act (EEA) dealing with the prohibition of unfair discrimination.

The employer maintained that the difference in remuneration between Superintendent and Chief Superintendent is because there is a difference in rank and that race plays no role in the difference.

Principle established/reiterated:

Legal foundation:

In order to establish a legal basis on which to assess the validity of the complainants’ allegation of unfair discrimination, the LC recognised the relevant legal principles contained in Section 6 of the EEA (refer to the links above).

In addition, the LC referred to Section 9  of the Constitution of South Africa. This section guarantees to everyone equality and prohibits unfair discrimination. Broadly, the Constitution ensures democratic values, social justice, equal protection by law and the observance and protection of human rights to all. Municipalities, being local government and therefore organs of state, are duty bound to adhere to the observance of fundamental human rights guaranteed by the Constitution, which includes to ensure equality and to refrain from unfair discrimination.

From differentiation to discrimination to unfair discrimination:

Whenever unfair discrimination is alleged by a party, differentiation (distinguishing between two or more things or people) is usually what gave rise to the perception of unfair discrimination. Differentiation, in itself, is not necessarily unfair or unjust, because it is part of our daily lives and decisions. When differentiation however causes undue inequality (as alleged in this case) it may amount to unfair discrimination (my understanding).

Having established the legal basis for the evaluation of the allegation of unfair discrimination, the LC proceeded to determine whether differentiation in the case concerned amounted to unfair discrimination. To assist in this determination, the LC referred to a case heard in the Constitutional Court (CC) in 1997 (Harksen v Lane N.O. And Others). In the Harksen-case the CC followed a two-pronged test in this regard and the LC adopted the same approach:

  • Firstly – does the differentiation in question amount to discrimination (in a neutral sense)?

If the differentiation is on a specified ground (refer Section 6(1) of the EEA), discrimination has been established.

If not, it has to be determined whether the differentiation is based on a ground which has the potential to negatively affect the human dignity of a person or to have another serious negative effect. This being the case, discrimination will be established.

  • Secondly, with discrimination being established, it has to be determined whether the discrimination is unfair. If based on a specified ground (refer Section 6(1) of the EEA), unfair discrimination has happened. If the discrimination is not based on a specified ground, the unfairness of the discrimination must be proven by the complainant, based on the practical impact of the discrimination on him/her.

It needs to be understood that while the Constitution protects the fundamental human rights (as the right concerned here) the protection is not absolute in the sense that it is cast in stone. Unfair discrimination having been established through the process described above, still could be regarded as justifiable in the circumstances by subjecting it to the provisions of the limitation of rights as provided for in Section 36 of the Constitution.

Once unfair discrimination is established on a listed ground (as in the case in question) the employer has the duty to prove, on a balance of probability, that unfair discrimination did not take place, or that the discrimination is reasonable, not unfair or is otherwise justifiable.

The equal work component of equal pay for equal work:

The next part of the LC’s evaluation of the validity of the complainants claims of unfair discrimination, centres around bringing the alleged unfair discrimination within context of equal pay for equal work.

In this regard, the LC firstly consulted Regulation 4 of the EEA which defines work of equal value.  In this regard, work of equal value is work which:

  • is the same as the work performed by another employee of the same employer, in the sense that their work is identical or interchangeable; or
  • is substantively the same as the work performed by another employee of the same employer if the work performed is sufficiently similar and can be considered as the same work, even if not identical or interchangeable; or
  • is of the same value as the work of another employee of the same employer in a different job if these employees are valued the same in accordance with, for instance, Regulation 6(1).

The equal value component of equal pay for equal work:

While Regulation 4 basically dealt with work of equal value focusing on the work in particular, the LC then turned to Regulation 6(1) of the EEA placing the emphasis on the value component.  The value of the work in question is objectively assessed in terms of Regulation 6(1) against the following criteria:

  • The responsibility demanded of the work (people, finances & material).
  • The skills, qualifications and prior learning required to perform the work.
  • The physical, mental, and emotional effort required to perform the work.
  • The conditions under which the work is performed.

In the case in question, the LC ultimately concluded that the above criteria having been applied to the case presented before it, the employees failed to prove that they performed the same or substantially the same work as their respective comparators and that the differentiation in remuneration is based on race.


It is evident from the LC’s comprehensive evaluation of the claim concerned, that determining the existence of unfair discrimination cannot be done on face value alone.

Two seemingly similar positions or positions of seemingly equal value which are differentiated in respect of remuneration, may or may not be differentiated on grounds of inequality and thus may or may not amount to unfair discrimination.

It needs a methodical evaluation process, as was followed in the case in question, in order to arrive at an objective determination whether unfair discrimination categorised the differentiation.

Get started

Book a Demo