The unprecedented R271m equal pay court battle between IT specialist Andile Ngcaba and Dimension Data is really about whether black economic empowerment (BEE) is a scam, his lawyer said on Tuesday.
Dali Mpofu was arguing against an application for the matter to be postponed in the Johannesburg high court.
Ngcaba, a former communications director-general, is seeking the amount from his former employer. He says over 12 years, after his appointment in 2004, some white executives who reported to him were, unbeknown to him, paid large bonuses from which he was excluded.
The companies involved in the court case are Dimensaion Data Middle East and Africa and its Japanese parent company Nippon Telegraph and Telephone (NTT).
Mpofu said this case concerned the Broad-Based Black Economic Empowerment Act (B-BBEE) in relation to law of contracts, including good faith and ubuntu.
"The problem for the plaintiff started in 2004. The real problem started in 1652. That is being dealt with by this legislation. This is not a trivial matter about whether or not the whole BEE thing is a scam to visit black people with more racism," he said.
Mpofu said the matter was not about a clause in a contract of employment.
"This is about the reality of redressing, peacefully, the historical injustice over the centuries."
He said the trial had been correctly labelled corporate racism.
He said the case could be dealt with in three ways: whether objections raised by the companies were correct, whether Ngcaba was a victim of corporate racism and, if so, how much he should be compensated.
Mpofu said the companies were trying to avoid the matter being heard in court. He said there was a suggestion in August that the matter be referred to arbitration.
The problem for the plaintiff started in 2004. The real problem started in 1652.
— Dali Mpofu
"It is an excuse after excuse after lame excuse to get the matter out of the public eye and into a secretive room in front of an arbitrator," Mpofu said.
He suggested that if the court refused the postponement application, judge Fritz van Oosten should refer that the application on special pleas be heard before another judge during the 14 days allocated to the case.
The special pleas application - which the judge said was handed in too late to deal with on Tuesday - is centred around the jurisdiction of the high court to hear this matter.
If the court rules in favour of the companies and Dimension Data executive director Jeremy Ord on the special pleas, that will signal the end of Ngcaba's case in the high court.
However, Van Oosten on Tuesday only heard the postponement application by Dimension Data Middle East and Africa, NTT and Ord.
The companies and Ord sought the postponement because an expert report had not been finalised before the start of the trial.
Jenny Cane, counsel for the companies and Ord, said the request for the postponement came after a "complex" expert report compiled by Ngacaba's team.
"It was only when the plaintiff's report came very late, in relation to its own complexity and volume. It was then that defendants said they were prejudiced and could not deal with it in time," Cane said.
Judgment on the postponement application was reserved and is expected to be handed down later this week.
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