Andile Ngcaba’s R117m racial discrimination lawsuit against Dimension Data set to proceed in court

Top businessman Dr. Andile Ngcaba’s R117 million lawsuit against information technology services company Dimension Data looks set to proceed after the tech giant failed to have the case separated into three different matters.

Ngcaba is suing Dimension Data for paying him less than his white colleagues when he was a shareholder and its chairman, citing racial discrimination.

On Tuesday, Gauteng High Court, Johannesburg Judge Stuart Wilson dismissed the firm’s application to separate three special pleas but reserved costs for the main action.

The special pleas raised by Dimension Data included that the high court lacked the necessary jurisdiction to adjudicate Ngcaba’s claims, both of which according to the company, concern its duty as an employer not to discriminate against an employee and therefore this type of claim is within the Labour Court’s jurisdiction.

In its submission in the high court, Dimension Data stated that as Ngcaba’s claim relates to discrimination against him as an employee, the Labour Court has jurisdiction, under the applicable provisions of the Employment Equity Act.

However, Ngcaba maintained that the discrimination he alleges has more to do with his status as a shareholder and investor in Dimension Data and is a straightforward breach of contract.

Dimension Data’s two other special pleas related to Ngcaba’s claim based on the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) and that his contractual claim must be referred for arbitration rather than be heard by the high court.

Ngcaba was Dimension Data executive chairman until mid-2017 and was party to a service agreement, in respect of which he received a salary and was entitled to a bonus.

He stated that the service agreement also entitled him to participate in Dimension Data’s long-term incentive plan, part of which was a share appreciation rights scheme.

Ngcaba accuses the company of being in breach of his service agreement and its statutory duty not to unfairly discriminate against him based on his race

He added that Dimension Data failed to procure his participation in both the incentive scheme and the share rights scheme while eligible white executives were allowed to participate in those schemes.

Ngcaba maintained that he was excluded from the schemes because he is black and believes that had he participated in them as he was entitled to do he would have been paid just over R117m, which he never received and that these are his damages.

In dismissing Dimension Data’s bid to separate the matters, Judge Wilson said it was well-established that an employment dispute pleaded exclusively in contract may be entertained by the high court.

“But the proper characterisation of Ngcaba’s claim is not a straightforward question. Certainly, I cannot say that Dimension Data has overwhelming prospects of showing that Ngcaba’s claim is not a matter that engages this court’s common law jurisdiction,” the judge explained.

He said the same applied to the special plea of prescription.

“Dimension Data says that the claim based on Pepuda is effectively a delictual claim for damages. That being so, the damages asked for are a ‘debt’ within the meaning of section 11(d) of the Prescription Act 68 of 1969.

Dimension Data also says that debt prescribed in 2019, some five years before the Pepuda claim was introduced by way of amendment in 2024. By contrast, Ngcaba says that the Pepuda claim is not a claim for a ‘debt’ under the Prescription Act but for statutory damages under Pepuda itself,” Judge Wilson found.

In addition, the judge found that Ngcaba’s position is not without support.

“In the context of administrative law, the Supreme Court of Appeal has held that claims for compensation created by statute and based on the breach of a public law duty are not ‘debts’ for the purposes of the Prescription Act,” added Judge Wilson.

He said Dimension Data offered no other basis on which the separation it proposed would be convenient in the required sense.

“Indeed, it seems to me that, given the elapse of time since these proceedings were instituted, the most convenient course of action for everyone involved is to press on with the trial as soon as reasonably possible,” reads the judgment.

Ngcaba had not responded to requests for comment on Wednesday, the date on which the trial has been set down.

loyiso.sidimba@inl.co.za