Msezeni and Others v Workforce Group (Pty) Ltd and Another (30437/2018) [2021] ZAGPJHC 133 (17 May 2021)

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[2021] ZAGPJHC 133
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Msezeni and Others v Workforce Group (Pty) Ltd and Another (30437/2018) [2021] ZAGPJHC 133 (17 May 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No: 30437 /2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
DATE:
17 MAY 2021
In
the matter between:
NONTANDAZO
MSEZENI
First
Applicant
SIVE
TWANI
Second Applicant
NOMFUNEKO
NKOMIPHELA
Third Applicant
NOMAXHOSA
KHALIPHA
Fourth Applicant
ELIZABETH
CHAUKE
Fifth Applicant
NONZWAKAZI
SIKHWEPHA
Sixth Applicant
PALESA
MOKOENA
Seventh Applicant
and
WORKFORCE
GROUP (PTY) LTD
First Respondent
DEW
CRISP (PTY) LTD
Second Respondent
(This
judgment is handed down electronically by circulation to the parties'
legal representatives by email and by uploading it to
the electronic
file of this matter on CaseLines. The date for hand-down is deemed to
be 17 May 2021.)
JUDGMENT
MIA
J:
INTRODUCTION
[1]
The applicants in the matter sought an order in the following terms:
"1.
The First Respondent has never been the employer of the Applicants.
2.
Alternatively that the First Respondent was not the employer
of the
Applicants at the time the Applicants were dismissed and/or their
services were terminated by/or at the Second Respondent.
3.
Alternatively that there are no contracts of employment existed

and/or alternatively entered into between the First Respondent and
the Applicants in terms of which the First Respondent was the

employer and the Applicants were the employees.
4.
All contracts of employment alleged to have existed between
the
Applicants and First Respondent in terms of which the First
Respondent was the employer and the Applicants were the employees,

the copies of which were produced at the CCMA during Arbitration
hearing between the Applicants and Second Respondent under Case

Number GAJB17507-17 are invalid and set aside.
5.
Alternatively that the signatures of employees alleged by the
First
Respondent to be the
signatures of the Applicants in the contracts of
employment alleged to be
entered into and existed between the First Respondent and the
Applicants in terms of which the Applicants
were the employees and
the First Respondent was the employer, the copies of which were
produced at the CCMA during Arbitration
hearing between the
Applicants and the Second Respondent under Case Number GAJB17507-17
are not the signatures of the Applicants.
6.
That the Second Respondent has always been the employer of the

Applicants throughout the whole period of the Applicants employment
at the Second Respondent.
7.
Alternatively that the Second Respondent was the employer of
the
Applicants at the time when the Applicants were dismissed and/or
their services were terminated at the Second Respondent."
The
first respondent opposed the application. There was no notice of
opposition or answering affidavit filed by the second respondent.
[2]
The first to seventh applicants all reside at Muldersdrift near
Krugersdorp in Mogale
City Municipality, Gauteng Province. The first
respondent is the Workforce Group Staffing (Pty) Ltd, a private
company registered
in terms of the South African laws with the
registration number 1999/006358/07 and business address at 11
Wellington Road in Parktown,
Johannesburg. The second respondent is
Dew Crisp (Pty) Ltd, a private company having its business address at
Plot 81 Muldersdrift,
near Krugersdorp in Mogale City Municipality,
Gauteng Province.
[3]
The applicants allege they worked for the second respondent and
signed different contracts
from 2015 onwards with the second
respondent. The contracts were for fixed periods of employment and
were renewed, and at other
times, they worked without a contract in
place. They were paid by and received payslips from the second
respondent. On 3 March
2017,, the applicants and other employees were
called to a meeting by the second respondent during working hours. A
representative
of the second respondent introduced the first
respondent to all the employees, including the applicants. The first
respondent was
introduced as a company from whom they were required
to take funeral policies. They were threatened with loss of
employment if
they refused to take out such policies. They were
requested to sign some forms which they believed to be the forms
related to such
policies. After they signed the forms as requested by
the second applicant and the first respondent related to the funeral
policies,
the meeting was adjourned.
[4]
At the end of the month when the meeting occurred, the employees
received payslips
issued by the first respondent and not from the
second respondent. They also noticed that their salaries were not
paid in full.
They approached their manager, Mr Khalinda, employed by
the second respondent, to enquire about the shortfall in their
salaries.
He informed them he would look into the matter at the Human
Resource office and enquire from the first respondent and revert to

them. The following day they called a meeting with Mr Khalinda once
more. Mr Khalinda arrived with a representative of the first

respondent. He informed the representative about their concerns and
showed him a payslip. The representative advised that the outstanding

money would be paid to the employees. A week later, the outstanding
money was paid to the employees.
[5]
On 31 July 2017, a further meeting was called by the second
respondent. The applicants
and other employees were addressed by a
certain Mr Jaco, a shareholder at the second respondent. He informed
them that the second
respondent was not making a profit and would
retrench employees in the future. The meeting was adjourned without
further discussion.
More than a week after the meeting, as mentioned
above and on 11 August 2017, the applicants and other employees were
once more
called separately by their respective supervisors to
different meetings. In the section meetings, they were informed not
to return
to work from 12 August 2017. Furthermore, they were
informed that they would be called if they were required to come to
work. That
effectively was their last day at work as they were never
called to work and remained unemployed.
[6]
When they were dismissed, the applicants allege the second respondent
had employed
them for more than twelve months. They were employed on
different dates as reflected in their payslips issued by the second
respondent,
some of which were attached to the application. Some
employees who were employed after the applicants by the second
respondent
were never dismissed and remained employed with the second
respondent. The applicants, therefore, referred a dispute to the CCMA

challenging their dismissal by the second respondent. The dispute was
first referred for conciliation and mediation. The matter
remained
unresolved on 12 September 2017. The dispute was, after that,
referred for arbitration due to take place on 16 February
2018.
[7]
The applicants attended the arbitration hearing; however, the second
respondent failed
to arrive. Instead, the legal representative of the
first respondent arrived with a request to join the application and
sought
a postponement of the arbitration hearing. The applicants'
disputed that the first respondent was their employer and objected to

the proposed joinder. They did agree to a postponement of the hearing
for purposes of the second respondent's attendance at the
hearing
since it was their employer and against whom they had referred the
dispute. The Commissioner ruled that the first respondent
be joined
to the proceedings and postponed the matter for the attendance of the
second respondent. He further ordered the second
respondent to pay
the applicant's travelling costs. The matter was postponed and
enrolled for hearing on 10 May 2018.
[8]
On 10 May 2018, the second respondent did not appear again. The first
respondent's
representative appeared and claimed that the applicants
were their employees placed with their client. The first respondent
relied
on copies of contracts of employment which were not clear. The
applicants' denied that the first respondent was their employer,

repeatedly insisting that the second respondent was their employer.
The Commissioner postponed the proceedings again for the second

respondent to attend the proceedings and further ordered the first
respondent to produce clear and legible copies of the alleged

contracts of employment.
[9]
When the matter was heard on 14 June 2018, the first respondent's
legal representative
informed the Commissioner that the application
for joinder was an error. The first respondent wished to apply for
substitution,
whereby the first respondent would substitute the
second respondent as the employer. The first respondent placed
reliance on the
same documents as were produced previously. The first
respondent alleged that employment contracts entered into between the
applicants
as the employees and the first respondent as the employer.
Therefore, the first respondent had placed the applicants in the
business
of its client, the second respondent. This was denied by the
applicants who denied ever being employed by the first respondent.
[10]
Upon perusing the copies of the alleged contracts, the applicants'
noticed that the employees'
signatures alleged therein by the first
respondent to be the applicants' signatures were not their genuine
signatures; alternatively
were forged. The first respondent did not
produce the contract/ or copy of the contract of employment alleged
by it to have been
entered into between the first respondent as the
employer and the sixth applicant as the employee. The sixth applicant
confirmed
that there is no contract of employment ever entered into
between herself as the employee and the first respondent as the
employer.
This raised a dispute regarding the contracts of employment
and the validity thereof. The Commissioner ruled that the Commission

lacked jurisdiction to hear the matter and should be taken to the
appropriate forum.
[11]
In the application before this court, the applicants refer to the
alleged signatures of the first,
second, third, fourth, fifth and
seventh applicants as per their founding affidavit. The first
applicant contends that her signature
has always been as appended to
her founding affidavit as compared to the contracts produced by the
first respondent. The remaining
applicants who signed confirmatory
affidavits contend that their signatures appear as they have signed
in their confirmatory affidavits
attached to the founding affidavit
as Annexures. The first respondent produced no contract relating to
the sixth respondent.
[12]
The issues for determination are as follows:
1.
The admissibility of the first respondents answering affidavit due to
non-compliance with formalities for commissioning an affidavit?
2.
Whether the
first respondent or the second respondent was the applicants'

employer at the time the applicants were dismissed and/or their
services were terminated?
[13]
Section 77 of the Basic Conditions of Employment Act 75 of 1997
(BCEA) provides:
"
77.
Jurisdiction of Labour Court.
—
(1)
Subject to the Constitution and the jurisdiction of the
Labour Appeal Court, and except where this Act provides otherwise,

the Labour Court has exclusive jurisdiction in respect of all matters
in terms of this Act.
(1A)
The Labour Court has exclusive jurisdiction to grant civil relief
arising from a breach
of sections
33A, 43, 44, 46, 48, 90 and 92.
(2)
The Labour Court may review the performance or purported performance
of any
function provided for in this Act or any act or omission of
any person in terms of this Act on any grounds that are permissible

in law.
(3)
The Labour Court has concurrent jurisdiction with the civil courts to
hear
and determine any matter concerning a contract of employment,
irrespective of whether any basic condition of employment constitutes

a term of that contract.
(4)
Subsection
(1) does not prevent any person relying upon a provision of

this Act to establish that a basic condition of employment
constitutes a term of a contract of employment in any proceedings in

a civil court or an arbitration held in terms of an agreement.
(5)
If proceedings
concerning any matter contemplated in terms of subsection

(1) are instituted in a court that does not have
jurisdiction in respect of that matter, that court may at any stage
during
proceedings refer that matter to the Labour Court.
[14]
Section 33A of the BCEA provides:
"
33A.
Prohibited conduct by employer.
—
(1)
An employer must not—
(
a
)
require or accept any payment by or on behalf of an employee or
potential
employee in respect of the employment of, or the allocation
of work to, any employee; or
(
b
)
require an employee or potential employee to purchase any goods,
products
or services from the employer or from any business or person
nominated by the employer.
(2)
Subsection
(1) (
b
)
does
not preclude a provision in a contract of employment or collective
agreement in terms of which an employee is required
to participate in
a scheme involving the purchase of specific goods, products or
services, if the purchase is not prohibited by
any other statute and—
(
a
)
the employee receives a financial benefit from participating in the
scheme;
or
(
b
)
the price of any goods, products or services provided through the
scheme
is fair and reasonable."
POINTS
IN LIMINE
[15]
Counsel for the first respondent, Ms Rambachan-Naidoo, raised several
points
in
limine.
The
first point raised was that the applicants' disputing the validity of
the answering affidavit was dispositive of the opposition
raised. She
referred to several decisions
[1]
wherein the court exercised its discretion regarding the admission of
an affidavit that did not comply with Regulation 4(1) of
the
Regulations Governing the Administration of Oaths or Affirmation No
1258 of 21 July 1972(the Regulations). Regulation 4(1)
provides:
"4. (1) Below the
deponent's signature or mark the Commissioner of Oaths shall certify
that the deponent has acknowledged that
he knows and understands the
contents of the declaration and he shall state the manner, place and
date of taking the declaration."
[16]
Mr Mbelu relied on the case of
Smit v
Pretorius & others
(33801/2001)
[2014] ZAGPPHC 632 (20 August 2014), where the court rejected an
affidavit which appeared not to have been deposed
to before a
Commissioner of Oaths, and there was no reason to explain why the
deponent signed after the Commissioner of Oaths had
signed. He,
therefore, requested that I reject the answering affidavit in the
present matter.
Ms Ramabachan- Naidoo
submitted the in the present matter the oath was administered, and
each page was initialled, and the last
page was signed. There was
substantial compliance save for stating the date and place, clearly
indicated in the Commissioner of
Oaths stamp as Parktown. I agree
with Ms Ramabachan Naidoo that the present matter is
distinguishable from
Smit's
case, where Mrs Lombard testified that she was summoned to the office
of her father's attorney to sign the affidavit, which she
did without
reading it. In
Smit,
the evidence did not show that she took an oath before signing the
affidavit. She signed the affidavit in the office of her father's

attorney in the presence of her father, the attorney and herself. She
did not appear before a Commissioner of Oaths and could not
have
deposed and signed before the Commissioner of Oaths.
[17]
I now deal with the submissions related to the second affidavit filed
by the first respondent
who filed an application for condonation for
the late filing of the answering affidavit. The first affidavit is
marked "EK1"
filed on Caselines at 009-48. The deponent is
Tebogo Moalusi. The second affidavit and the one which refers to the
signature at
Parktown is the affidavit which the first respondent
calls "EK2". The document is not marked. After the first
page the
remainder of the affidavit pages are filed upside down which
goes contrary to proper filing and paginating a file and is found at

Caselines 009-97. There was no attempt made to address this and to
correct the error. The first respondent's request is that the

affidavit marked "EK2" replace the document marked "EK1"
should the court find the document marked "EK1"
is not
compliant in terms of attestation.
[18]
Both affidavits reflected the date and place in the Commissioners
Oath. There was nothing before
me to suggest the Commissioner had
signed before the deponent or that any other irregularity had
occurred as suggested. To the
extent that the first respondent seeks
to have the second answering affidavit admitted, it seeks to get a
second bite at the cherry
as it were. The same discretion I am asked
to apply to the first answering affidavit would apply to the second
answering affidavit
in terms of the formalities related to the
Regulations. The first respondent sets out no circumstances
justifying the filing of
the second affidavit, which sets out further
facts not contained in the first affidavit. The document is also not
marked "EK2",
and it is not clear that the second answering
affidavit is the document referred to in the application for
condonation.
The
first respondent's conduct has not been reasonable in this regard. I
note further that the annexures attached are barely legible,
and some
are not legible at all. There are no grounds made out in the
affidavit on which the affidavit should be accepted and admitted
into
evidence. The indulgence the respondent seeks places the parties on
unequal ground in litigating if I were to admit the second
affidavit
with the first respondent laying a sound basis for its admission.
Consequently, the second affidavit is not admitted,
and I will rely
only on the affidavit marked "EK1".
[19]
The second point
in
limine
raised
was
by
the applicants who disputed the first respondent's
locus
standi
.
Ms Rambachan-Naidoo noted the requirements
[2]
for
locus
standi
.
She submitted that the first respondent had a direct and substantial
interest in the outcome of the relief sought in this paragraph,
which
accords fully with the reasoning in the matter of
Ahmadiyya
Anjuman lshaati-Islam Lahore (South Africa) & another v Muslim
Judicial Council (Cape) and others
1983
(4) 855 (C)at 863H-864A; where Tebutt J explained the concept of a
direct and substantial interest in a matter, in the following
terms:
"It
is clear that in our law a person who sues must have an interest in
the subject-matter of the suit that such interest must
be a direct
one"
She
relied on the
South African Post Office
Ltd v Tas Appointment and Management Services CC and Others
(JA
112112) [2012] ZALCJHB 11;
[2012] 6 BLLR 621
(LC); (2012) 33 1 L1958
(LC) (13 February 2012), where Lagrange J stated the following:
"The essential
features of the legal relationship between the labour broker, the
client and the labour brokers' employees are
well-known. The labour
broker contracts with the client to provide certain types of labour
to perform work for the client, but
the persons who are engaged to
perform the work are employed by the labour broker and not the
client. The client thereby obtains
the services of persons to perform
the work it requires without having to employ them."
[20]
It is disputed that the first respondent (the labour broker)
contracted with the applicants (the
employees) to provide certain
types of labour to perform work for the client (Dewcrisp (Pty) Ltd).
On the issue of
locus standi,
the applicant joined the first
respondent because they have an interest in the matter before this
court, and thus the issue of
locus standi
cannot be an issue
in this court.
[21]
The applicants allege that the first respondent is incorrect in
raising the point
in limine
regarding jurisdiction of the
court to deal with the matter as this court has jurisdiction to hear
the application on the basis
of the ruling of the Commissioner at the
CCMA. The main referral and the primary issue for the applicants is
whether or not the
first respondent is the employer. Ms Rambachan-
Naidoo argued that the question is whether the claim, as formulated
by the applicants
in their pleadings, fall within the scope of the
above Honourable Court's jurisdiction to consider. (See
Radon
Projects (Ply) Ltd v NV Properties (Ply) Ltd & another
2013
(5) SA 345
(SCA) at [23].)
[22]
On the question of jurisdiction, Ms Ramabachan-Naidoo submitted in
her heads of argument that
"
Section
77 (1) of the BCEA vests the Labour Court with exclusive jurisdiction
"in respect of all matters in terms of this Act,
except in
respect of an offence in section 43, 44, 46, 48, 90 and 92.".
On
this basis, she concludes that this court does not have jurisdiction,
and submitted that the Labourt Court had exclusive jurisdiction.

Section 77 reads as follows:
"
77.
Jurisdiction of Labour Court.
—
(1)
Subject to the Constitution and the jurisdiction of the
Labour Appeal Court, and except where this Act provides otherwise,

the Labour Court has exclusive jurisdiction in respect of all matters
in terms of this Act.
(1A)
The Labour Court has exclusive jurisdiction to grant civil relief
arising from a breach
of sections
33A, 43, 44, 46, 48, 90 and 92.
A
plain reading of section 77(1) indicates clearly that the Labour
Court has exclusive jurisdiction, "except where this Act

provides otherwise". It then goes on to specify the exclusive
areas of jurisdiction the Labour Court has, namely with regard
to
sections 33A, 43,44,46,48,90 and 92. Section 77 then goes further in
section 77(3) to state that:
"77 (3) The
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning
a contract of employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract."
Thus
a plain reading of this section means a civil court has concurrent
jurisdiction regarding any matter which concerns a contract
of
employment, consequently, this court does have jurisdiction.
[23]
I now move to the issue raised that there is a dispute of fact.
The applicants' contend that the first respondent
did not dispute the signatures on the fixed-term contracts as a
material dispute
of fact. Mr Mbelu, for the applicants, submitted
that the authenticity of the signatures is not a material dispute. He
referred
to the court's approach in
Marneweck
and Others v Shabalala and Others
(A5030/13)
[2014] ZAGPJHC 85 (8 April 2014) at paragraph [25]. The court said:
"The
test to determine the existence of a dispute of fact is trite. The
court must decide whether the dispute is a genuine
[3]
dispute of fact. Therefore, the party who relies on a defence of a
dispute of fact must established it in the affidavit.
[4]
The affidavits constitute
both the facts and evidence. The litigants are expected to establish
their rights in their affidavits.
It has been said time and time
again that a bare denial as the Respondents have done will not
suffice. However, even when there
is a dispute of fact the court is
entitled to take a robust approach if the case is justified in the
circumstances. The contents
of the affidavits are the facts which the
opponents are asked to act upon. Even where there are genuine facts
the court is enjoined
to take a robust attitude."
[24]
Ms Rambachan- Naidoo argued that this case is distinguishable from
the decision in
Marneweck
above, where the respondents raised a bare denial in their answering
affidavit in comparison to the first respondent in the present
matter
who has established that there is a dispute of fact in its answering
affidavit. She argued that the applicants fail to challenge
the
version of the first respondent that they employed the applicants,
referring to
Makanya v University of
Zululand
2010 (1) SA (SCA) at [22] -
[24]. (A5030/13) [2014] ZAGPJHC 85 (8 April 2014) at para [25]. She
continued that the applicants did
not attach the transcription of the
record of the CCMA, nor have they attached their contracts of
employment with the second respondent
to dispute the first
respondent’s version.
[25]
It is apparent from the applicants' affidavits that there were
numerous contracts concluded over
a period of time. They were only in
receipt of salary advice slips which they attached. Similarly, the
first respondent was only
in possession of the disputed contracts
they allege they concluded with the applicants. They did not attach
salary advice slips.
Regarding the reasons for the second respondent
issuing the salary advice slips, the first respondents do not attach
either the
agreement with the second respondent which they rely on
for the second respondent issuing salary advice slips nor have they
attached
a confirmatory affidavit. However, they do confirm that they
are not in a position to speak on behalf of their client. In this
regard, they also confuse the issue regarding the relief sought by
the applicants. Mr Mbelu submits the applicants seek a determination

as to whether the first or second respondent was the employer whilst
the first respondent assumed the application was launched
to
determine the issue of unfair dismissal or retrenchment, which is not
the reason for the application. The applicants he continued
are not
pursuing the application to determine dismissal or retrenchment
before this court.
[26]
I accept that the dispute the applicants referred to this court was
whether the first respondent
or the second respondent was the
employer of the applicants. The applicants' had stipulated their
periods of employment with the
second respondent and submitted their
salary advice slips for the periods part of those periods. The first
respondent disputes
that this court has jurisdiction. I have already
pronounced that this court has jurisdiction to deal with the matter.
Furthermore,
pertaining to the dispute of fact, the first respondent
did not specify the dispute of fact. According to the first
respondent,
the applicant must prove that it is not their signatures.
However, the applicants contend that the first applicant was never
their
employer, and they never signed any agreements with the first
respondent. They assert that the second respondent was their employer

and they attached their salary advice slips. The issue of the
validity of the signatures lies with the first respondent who must

prove the disputed contracts and the signatures. The first respondent
referred to the approach adopted in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
All SA 366
A at 368 Corbett JA stated that:
'..where in proceedings
on notice of motion disputes of fact have arisen on the affidavits, a
final order, whether it be an interdict
or some other form of relief,
may be granted if those facts averred in the applicant's affidavits
which have been admitted by the
respondent, together with the facts
alleged by the respondent, justify such an order.”
In adopting the
Plascon-Evans
approach the first respondents has not placed
legible copies of the contract before this court, the signatures are
disputed, their
client does not confirm their version. Having regard
to the applicants affidavit and what the first respondent admits.
There is
a dispute of fact such that the first respondent’s
version appears improbable and is rejected.
[27]
The first respondent is the Workforce Group Staffing (Pty) Ltd (a
staffing company), a private
company registered in terms of the South
African Laws with the registration number 1999/006358/07 and business
address at 11 Wellington
Road in Parktown, Johannesburg. The second
respondent is Dew Crisp (Pty) Ltd, a private company having its
business address at
Plot 81 Muldersdrift, near Krugersdorp in the
Mogale City Municipality, Gauteng Province. The first respondent
contended that it
placed staff at the second respondent. For the
purpose of addressing the issue whether the first respondent had a
mandate to represent
the second respondent is not clear from the
papers. The first respondent makes it clear on the papers that it had
no mandate contractually
or otherwise to speak on behalf of the
second respondent who has chosen to ignore the proceedings.
[28]
Mr Mbelu submitted that the applicants have remained consistent in
their contention that the
second respondent was their employer
throughout the whole period of their employment up until they were
dismissed from employment.
The first respondent was never the
employer of the applicants and there are no contracts of employments
concluded between the applicants
and the first respondent. The
contracts of employments relied upon by the by the first respondent
produced at the CCMA are disputed.
The applicants deny having signed
such agreements. The applicants contend that they never approached
the first respondent to seek
employment and never concluded nor
signed any contracts of employment with the first respondent or to be
placed with an employer.
They therefore seek the agreements be
declared invalid and set aside.
[29]
The first respondent's contention that the applicants are their
employees based on the aforesaid
contracts of employment alleged by
the first respondent to have been concluded between itself and the
applicants is unfounded.
In view of the applicants' disputing the
signatures and/or validity of such contracts of employment, this
court was directed to
the payslips the applicants produced issued by
the second respondent. With regard to the dispute that the signatures
of employees
therein are their signatures, the applicants have
produced payslips issued by the second respondent to the applicants
during the
period of employment, the applicants have filed affidavits
denying signing the contracts and referred to. They referred their
complaint
of an unfair dismissal against the second respondent at the
CCMA for resolution. The CCMA lacks jurisdiction regarding the
contractual
dispute between the first respondent and the applicants.
The aforesaid contracts produced by the first respondent at the CCMA
remain
disputed by the applicants.
[30]
Except for the copies of the alleged disputed contracts of
employment, no other evidence is produced
by the first respondent
that it was the employer and that the disputed contracts of
employment are valid as between the applicants
and the first
respondent. Having regard to the applicant's undisputed evidence
regarding the period of employment prior to 2017
the second
respondent was the applicants employer throughout the whole period of
their employment up until they were dismissed
from employment. The
disputed contracts do no cover the periods for the contract stated in
the applicants' affidavit namely:
30.1
Applicant went to the second respondent to seek for employment, and
was employed to work only on Saturdays.
From 2 February 2016 she
commenced work every day, including Saturdays. in June 2016 she
signed a contract of employment with the
second respondent and
continued to work until the expiry of the said contract which was in
October 2016. From October 2016 she
worked without contract of
employment until January 2017. She signed another contract on 9
January 2017 which expired on 31 January
2017, thereafter the
contract was renewed on 1 February 2017 until it expired on 28
February 2017. She continued to work until
she was dismissed on 11
August 2017.
30.2
The second applicant commenced work at the second respondent on 13
October 2015. He signed a contract
of employment in November 2015 and
worked until June 2016. He then signed another contract of employment
and continued to work
until he was dismissed on 11 August 2017.
30.3 The third applicant
commenced work at the second respondent in December 2014 however she
worked on Saturdays only. In June
2016, she signed a contract of
employment with the second respondent and worked until the end of
October 2016. From thereon she
continued to work until January 2017
without a contract of employment. In January 2017 she signed another
contract of employment
with the second respondent which expired on 31
January 2017. The contract was renewed on 1 February 2017 until 28
February 2017
whereafter she worked without renewal until she was
dismissed on 11 August 2017.
30.4
The fourth applicant commenced working for the second respondent in
February 2015, and worked only
on Saturdays. On 8 October 2015, she
signed a contract of employment with the second respondent and worked
until February 2016
when the said contract expired. Thereafter she
continued to work without a contract of employment until June 2016.
In June 2016
she signed another contract of employment with the
second respondent and continued to work until October 2016 when the
contract
expired. Thereafter she continued to work without any
contract of employment until 1 February 2017. The contract was
renewed until
28 February 2017whereafter she continued to work until
she was dismissed on 11 August 2017.
30.5
The fifth respondent commenced working for the second respondent
since September 2015, however she
only worked on Saturdays. She
started to work every day in February 2016. She signed a contract of
employment in June 2016 and
continued to work until it expired in
October 2016. Thereafter she continued to work without a contract of
employment until she
signed another one - month contract of
employment on 1 February 2017 which expired on 28 February 2017. From
28 February 2017 she
continued to work without contract of employment
until she was dismissed on 11 August 2017.
30.6
The sixth applicant commenced working for the second respondent in
April 2016, on Saturdays only. She
started and continued to work
every-day from May 2016 until she was dismissed on 11 August 2017.
30.7
The seventh applicant commenced working for the second respondent in
December 2015, on Saturdays only.
On 26 January 2016 she started to
work every-day and continued to work until June 2016 when she signed
a contract of employment
and continued to work until it expired in
October 2016. Upon the expiry of the employment contract, she
continued to work without
any contract of employment until she signed
another contract of employment on 1 February 2017 which expired on 28
February 2017.
Upon expiry of the contract she continued to work
without a contract until she was dismissed on 11 August 2017.
[31]
In response to the above periods, the first respondent has no
records. The second respondent
does not dispute the applicants'
version. The first respondent cannot furnish a response on behalf of
the second respondent as
it has provided no authority to do so. The
second respondent has not confirmed the first respondent's version
either. The applicant
attached their payslips for the period 2017,
which is the period when they were supposed to be employed by the
first respondent.
Thus, the second respondent has not disputed the
applicants' version regarding employment as indicated for the first
to the seventh
applicant for the period before 2017, nor has it
disputed issuing salary advice slips for the period 2017. The only
conclusion
to be drawn from these facts then is that the second
respondent was the applicants' employer.
[32]
The full extent of the relief
requested by the applicants is not possible as the transcription of
proceedings at the CCMA was not
made available to this court. There
were also issues that this court is precluded explicitly from
deciding upon. I am satisfied
that based on the salary advices that
the second respondent employed the applicants.
[33]
I now move to the issue of costs. There are no reasons why cost
should not follow the cause.
ORDER
[34]
In the result, the following order is granted:
1.
The second respondent has always been the
employer of the applicants throughout the whole period of the
applicants' employment at
the second respondent and when the
applicants were dismissed and/or their services were terminated at
the second respondent.
2.
The first respondent to pay the costs
herein
S
C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARANCES:
On
behalf of the applicant
:

Mr SA Mbelu
Instructed
by
:
SA Mbelu Attorneys Incorporated
On
behalf of the applicant
:

Adv Rambachan Naidoo
Instructed
by

:
Hunts(Borkum Inc) Attorneys
saritah@huntsattorenys.co.za
Matter
Heard On

:
23
November 2020
Judgment
Reserved On
:

23 November 2020
Judgment
Delivered On
:

17 May 2021
[1]
ABSA
Bank Limited v Botha NO and Others
2013(5) SA 563 GNP;
Capriati
v Bonnox (Pty) Ltd and Another
(101816/2016) [2018] ZAGPPHC 345(10 May 2018)
[2]
1.It
must have an adequate interest in the subject matter of the
litigation, usually described as a direct interest in the relief

sought;
2.
The interest must not be too remote;
3.The
interest must be actual, not abstract or academic;; and
4
The interest must be current and not a hypothetical one
[3]
See:
The Civil Practice of High Court Vol.1 Page 293.
[4]
Pountas
Trustee v Lahanas
1924 WLD 67
at 68.