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[2023] ZAECMKHC 32
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Lovedale TVET College v National Education Health & Allied Workers Union (NEHAWU) and Others (795/2023) [2023] ZAECMKHC 32 (15 March 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
Case no: 795/2023
In the matter between:
LOVEDALE TVET COLLEGE
Applicant
and
THE
NATIONAL EDUCATION HEALTH &
ALLIED
WORKERS UNION (NEHAWU)
First Respondent
MLULEKI
JAMA
Second Respondent
NOSIMO
VENFOLO
Third Respondent
YANDISA
KLAAS
Fourth Respondent
MDUDUZI
MZANYWA
Fifth Respondent
ZUKO
SICWETSHA
Sixth Respondent
SIVUYISIWE
NGETE
Seventh Respondent
MELIKHAYA
MKHEPHULA
Eighth Respondent
NOMA
AFRIKA MAGODONGO
Ninth Respondent
PHINDILE
MGALELA
Tenth Respondent
ANELISA
MEMA
Eleventh Respondent
ASANDA
MTWA
Twelfth Respondent
FANELWA
SAUL
Thirteenth Respondent
MQOKELELI
GANTSHO
Fourteenth Respondent
EUGENE
WITBOOI
Fifteenth Respondent
MNCEDISI
FIGLAN
Sixteenth Respondent
WANDISILE
NTUSANA
Seventeenth Respondent
THULISWA
MAXHELA
Eighteenth Respondent
LUTHANDO
NJAMINI
Nineteenth Respondent
NOSIMPHIWE
PAKADE-NTUSANA
Twentieth Respondent
THE
GROUP OF EMPLOYEES AND
THOSE
WHO MAKE COMMON CAUSE
WITH
THEM INFRINGING THE RIGHTS
AND
INTERESTS OF THE APPLICANT
The Remaining Respondents
JUDGMENT
Govindjee J
[1]
The
Lovedale TVET College is a Public College duly established under the
Further Education and Training Colleges Act, 2006 (‘the
College’).
[1]
NEHAWU, the
first respondent, is engaged in strike action throughout the country,
in which the remaining respondents participate.
The College frames
the basis for the relief it seeks as follows:
‘
The
applicant does not purport to prevent any lawful strike action but
seeks to interdict illegal conduct which unlawfully is interfering
with the business and service delivery objectives of the applicant,
and other individuals who are referred to below…the
respondents have been moving between the two campuses, disrupting the
business of the applicant, its staff and service delivery
in the
manner set out below…the purpose of this application is to
interdict the respondents from conducting themselves in
an illegal
and unlawful manner in order to restore safety on the campuses of the
applicant, and to restore the ability of the applicant
to carry out
its core function, namely the teaching of students on its
campuses…all teaching and all learning at the Campus
of the
applicant in both King William’s Town and Zwelitsha has come to
a standstill as the safety of all persons involved
cannot be
guaranteed…the applicant has a clear right…to persist
with its business, peacefully and without interruption,
and that all
employees and students and staff have a right to work and render the
services that they have contracted either to
receive or to provide…it
is the applicant’s intention to ensure that strike action does
not interfere with the business
of the applicant, its other employees
and the constitutional rights of all concerned…’
[2]
The
relief sought is couched in the form of a rule nisi interdicting
conduct ‘that obstructs or frustrates the effective rendering
of educational services and administration services’ by the
College or the ‘ability of the applicant’s employees
to
do their work’. NEHAWU takes the point, without filing opposing
papers on the facts, that this court lacks jurisdiction
based on the
exclusive jurisdiction of the Labour Court, in terms of s 68 of the
Labour Relations Act, 1995
[2]
(‘LRA’) to grant relief in respect of unprotected
strikes.
[3]
[3]
Section
157 of the LRA deals with the jurisdiction of the Labour Court and,
in the context of determining a High Court’s concurrent
jurisdiction in respect of matters arising from employment and labour
relations, has resulted in at least four relevant judgments
of the
Constitutional Court, which itself describes the issue as vexed.
[4]
The section is framed as follows:
‘
(1)
Subject to the Constitution and section 173, and except where this
Act provides otherwise, the Labour Court has exclusive jurisdiction
in respect of all matters that elsewhere in terms of this Act or in
terms of any other law are to be determined by the Labour Court.
(2) The Labour Court has
concurrent jurisdiction with the High Court in respect of any alleged
or threatened violation of any fundamental
right entrenched in
Chapter 2 of the Constitution of the Republic of South Africa, 1996,
and arising from –
(a)
employment and from labour relations…’
[4]
To
the trilogy of well-known initial judgments of the Constitutional
Court dealing with the question (‘
Fredericks
’,
[5]
‘
Chirwa
’
[6]
and ‘
Gcaba
’
[7]
)
has recently been added the decision in
Baloyi
,
and the judgment of Theron J, on behalf of a unanimous court, which
has further elucidated the appropriate approach.
[8]
This court relies heavily on that judgment in arriving at its
conclusion.
[5]
It
is clear that the jurisdiction of this court is not ousted simply
because a dispute is one that falls within the overall sphere
of
employment relations, as in the present instance.
[9]
Leaving aside cases where the jurisdiction of the Constitutional
Court is engaged, this court has jurisdiction to adjudicate any
matter except if it may be said that the matter has been assigned by
legislation to another court with a similar status to the
High Court,
such as the Labour Court.
[10]
[6]
The
Labour Court and Labour Appeal Court have been established by the LRA
as superior courts with ‘exclusive jurisdiction
to decide
matters
arising from the Act
.’
[11]
It is so that a s 68(1) application for an interdict or order
constitutes an example of a matter that is ‘to be determined
by’ the Labour Court so that that court enjoys exclusive
jurisdiction. The High Court’s jurisdiction may indeed be
ousted in respect of an employment-related dispute where the dispute
is one for which the LRA has created a specific remedy, such
as the s
68(1) interdict to restrain participation in a strike not in
compliance with the LRA. The reason for this is described
in
Baloyi
,
namely that the LC and LAC were ‘designed as specialist courts
that would be steeped in workplace issues and be best able
to deal
with complaints relating to labour practices and collective
bargaining’.
[12]
It is
so that those courts have been held to be ‘uniquely qualified’
and a ‘one-stop shop’ to address labour-related
disputes.
[13]
[7]
But
the High Court’s jurisdiction is not ousted by s 157(1) only
because a dispute is one that falls within the overall sphere
of
employment relations.
[14]
Section 157(2) confirms the concurrent jurisdiction of the Labour
Court and this court in respect of ‘any alleged or threatened
violation of any fundamental [constitutional] right…arising
from employment and from labour relations’.
[15]
[8]
The
real question is whether the present claim is of such a nature that
it is required, in terms of the LRA, to be determined exclusively
by
the Labour Court.
Gcaba
is authority for basing that assessment of jurisdiction on the
applicant’s pleadings, as opposed to the substantive merits
of
the case:
[16]
‘
In
the event of the Court’s jurisdiction being challenged …
the applicant’s pleadings are the determining factor.
They
contain the legal basis of the claim under which the applicant seeks
to invoke the court’s competence. While the pleadings
–
including in motion proceedings, not only the formal terminology of
the notice of motion, but also the contents of the
supporting
affidavits – must be interpreted to establish what the legal
basis of the applicant’s claim is, it is not
for the court to
say that the facts asserted by the applicant would also sustain
another claim, cognisable only in another court.
If however the
pleadings, properly interpreted, establish that the applicant is
asserting a claim under the LRA, one that is to
be determined
exclusively by the Labour Court, the High Court would lack
jurisdiction.’
[9]
In
answering the core question, it must be appreciated that the same set
of facts may give rise to several different causes of action,
and
that a litigant may choose the cause of action they wish to pursue
and prepare their pleadings accordingly.
[17]
Baloyi
cites the example of a person seeking to pursue a claim of unfair
dismissal, which would have necessitated an approach to the Labour
Court in terms of s 157(1) of the LRA. Similarly, a case based on
interdicting participation in- or strike-related conduct associated
with a strike not in compliance with the provisions of Chapter IV of
the LRA would engage the exclusive jurisdiction of the Labour
Court.
[18]
That avenue was
clearly open to the College.
Baloyi
confirms, however, that it does not follow that that path was
obligatory.
[19]
The point is
illustrated again with reference to an unfair dismissal claim, and
the dictum of the SCA in
Makhanya
:
[20]
‘
The
mere potential for an unfair dismissal claim does not obligate a
litigant to frame her claim as one of unfair dismissal and
to
approach the Labour Court, notwithstanding the fact that other
potential causes of action exist. In other words, the termination
of
a contract of employment has the potential to found a claim for
relief for infringement of the LRA,
and
a claim for enforcement of a right that does not emanate from the LRA
(for example, a contractual right)… [citing
Makhanya
]:
[21]
“
When
a claimant says that the claim arises from the infringement of the
common-law right to enforce a contract, then that is the
claim, as a
fact, and the court must deal with it accordingly. When a claimant
says that the claim is to enforce a right that is
created by the LRA,
then that is the claim that the court has before it, as a fact. When
he or she says that the claim is to enforce
a right derived from the
Constitution, then, as a fact, that is the claim. That the claim
might be a bad claim is beside the point.”’
[10]
The
Constitutional Court has confirmed that it would be incorrect, and a
misapplication of
Chirwa
,
to base a finding of lack of jurisdiction on a holistic determination
of whether the dispute is located ‘within the compass
of labour
law’.
[22]
To repeat, the
question is whether the specific causes of action relied upon by the
College fall within the jurisdiction of the
High Court or the Labour
Court (or both).
[11]
Considering
the notice of motion and supporting affidavits, it is sufficiently
clear that the College forsakes reliance on its right
to apply for an
interdict on the basis that NEHAWU’s strike action was
unprotected. Approaching the matter on the basis that
any labour or
employment-related dispute associated with interdicting
strike-related conduct must be dealt with by the Labour Court
would
have the effect of destroying other causes of action or remedies,
which was not the intention of the LRA.
[23]
While other options may have been pursued, an alleged or threatened
violation of fundamental rights is discernible on the papers
as the
basis for this application. The focus is ultimately, and somewhat
widely, on constitutional rights – including the
rights of
students (to education), staff (to freedom and security of the person
and to work, which forms part of the constitutional
right to dignity)
and the College (to trade). It arises from ‘employment and the
labour relations’ but falls within
what was contemplated by s
157(2) of the LRA, so that the concurrent jurisdiction of the High
Court and Labour Court was engaged.
The pleaded case therefore cannot
be said to fall within the exclusive jurisdiction of the Labour
Court.
[12]
The jurisdictional point failing, there is
no opposition on the papers to the interim relief sought. The papers
make out the case
for an order in terms of the draft submitted, other
than 2.1.6 and 2.17 of that draft.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
14 March 2023
Delivered:
15 March 2023
Appearances:
For
the applicant:
Adv
S Cole SC
Instructed
by:
N
N DULLABH & CO
5
Betram Street
Makhanda
6140
For
the respondent:
Adv
C Cordell
Instructed
by:
NEHAWU
King
William’s Town
[1]
Act
16 of 2006.
[2]
Act
66 of 1995.
[3]
S
68(1) provides that: ‘In the case of any strike or lock out,
or any conduct in contemplation or in furtherance of a strike
or
lock-out, that does not comply with the provisions of this Chapter,
the Labour Court has exclusive jurisdiction –
(a)
To grant an interdict or order to restrain
–
i.
any person from participating in a strike
or any conduct in contemplation or in furtherance of a strike; or
ii.
…
(b)
…
[4]
See
Baloyi
v Public Protector and Others
[2020] ZACC 27
(‘
Baloyi
’)
para 1.
[5]
Fredericks
v MEC for Education and Training Eastern Cape
[2001]
ZACC 6.
[6]
Chirwa
v Transnet Limited
[2007]
ZACC 23.
[7]
Gcaba v
Minister of Safety and Security
[2009] ZACC 26.
[8]
While
Fredericks
,
Chirwa
and
Gcaba
considered whether the High Court has jurisdiction over
administrative law claims in the employment setting,
Baloyi
dealt with the High Court’s jurisdiction over contractual
claims arising in the employment setting.
[9]
Chirwa
op
cit fn 6 para 60.
[10]
S
169(1) of the Constitution provides as follows:
‘
The
High Court of South Africa may decide –
(a)
any constitutional matter except a matter
that –
i.
…
ii.
is assigned by an Act of Parliament to
another court of a similar status similar to the High Court of South
Africa …’
[11]
Preamble
to the LRA.
[12]
Motor
Industry Staff Association v Macun N.O.
[2015]
ZASCA 190
as cited in
Baloyi
para 30.
[13]
Baloyi
op
cit fn 4 para 30;
Chirwa
op cit fn 6 para 47.
[14]
Fredericks
op
cit fn 5 para 40.
[15]
This
adds to, rather than diminishes, the jurisdiction of the Labour
Court and Labour Appeal Court:
Gcaba
op cit fn 7 para 71.
[16]
Gcaba
ibid
para 75.
[17]
Baloyi
op
cit fn 4 para 38.
[18]
S
68(1) read with s 157(1) of the LRA.
[19]
Baloyi
op
cit fn 4 para 39.
[20]
Baloyi
op
cit fn 4 para 40.
[21]
Makhanya
v University of Zululand
[2009]
ZASCA 69
paras 11 and 71.
[22]
Baloyi
op
cit fn 4 para 43.
[23]
Gcaba
op
cit fn 7 para 73.