Cape Town Labour Court Judge Rabkin-Naicker has refused to remove the constitutionally aligned fundamental rights claims in a disabled woman’s court battle for general damages over alleged discrimination in her ongoing case against the Cape Town International Convention Centre (CTICC).

A Cape Times report says Makgosi Letimile instituted proceedings against the CTICC in October 2021 for alleged discrimination she experienced while in its employ.

She did this on the grounds of her disability and/or the intersectional grounds of her disability, race and gender; her alleged unfair dismissal for operational reasons; and the alleged violation of her constitutionally enshrined fundamental human rights to dignity, bodily and psychological integrity, freedom of expression and freedom of association. 

Letimile was hired as part of a targeted recruitment of disabled persons initiated by the CTICC in 2019.

She was allegedly promised that her disability would be accommodated and that she would be provided training to support her difficult re-entry into the job-market after only recently having become permanently disabled. 

Once employed, the CTICC’s promises of a disability-friendly workplace allegedly did not materialise as she was not provided training and appropriate equipment, and they allegedly failed to respond to her requests for disability awareness and sensitivity training in the workplace.

In April 2021, Letimile was dismissed.

The Cape Times report says Rabkin-Naicker’s interim judgment relates primarily to an exception brought by the CTICC in which it argued that those parts of Letimile’s claim that rely directly on the Constitution to found claims for general damages do not disclose a valid cause of action and should be removed from her papers prior to the main trial being heard.

Rabkin-Naicker ruled: ‘In my view the real issue at the heart of this exception is the question as to whether the reliance on various constitutional rights apart from that to equality and fair labour practices in this dispute, can give rise to a discreet general damages claim, over and above the damages claim allowed for under the Employment Equity Act (EEA). In other words, the trial court will have to consider, if it finds that the applicant’s fundamental rights were infringed as pleaded, whether this would in effect impact on the damages awarded under the EEA, or give rise, in addition, to a separate and additional award of general damages as sought by the applicant in her pleadings. This will be argued at the end of the trial and decided after that point. The exception must be dismissed.’

Full Cape Times report

Judgment