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[2023] ZAECMHC 32
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Mbambi v Tyeks Security Services (4348/2019) [2023] ZAECMHC 32 (4 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Reportable
Case No: 4348/2019
Date heard: 24 May 2023
Date delivered: 4
July 2023
In the matter between:
MZOLISWA
MBAMBI
Plaintiff
and
TYEKS
SECURITY SERVICES
Defendant
JUDGMENT
Notyesi AJ
Introduction
[1]
Mr Mzoliswa Mbambi of Tombo Administrative
Area, Port St Johns, was employed by Tyeks Security Services as a
security officer. He
was dismissed from his employment, according to
him, in June 2019. Consequent thereto, he instituted these
proceedings against
Tyeks Security Services seeking payment of
damages in the sum of R408 825. According to him, prior to his
dismissal, Tyeks
Security Services had attempted to transfer him from
his station at the Port St Johns Post Office and to place him at a
certain
bed and breakfast enterprise within Port St Johns.
[2]
In
these proceedings, Mr Mbambi is contending that his dismissal
constituted an act of repudiation of his contract by Tyeks Security
Services and that he has accepted the repudiation. Mr Mbambi
contended that, for his cause of action, he is relying on the Basic
Conditions of Employment Act
[1]
(‘BCEA’) and the repudiation of his contract.
[3]
On the contrary, Tyeks Security Services
raised a special plea. Tyeks Security Services contend that the High
Court has no jurisdiction
to adjudicate the dispute because the
dispute falls exclusively within the jurisdiction of the Labour
Court. Tyeks Security Services
submitted that Mr Mbambi absconded
from work and was thereafter referred for disciplinary proceedings.
There is a dispute about
the nature of the contract of employment
between the parties. The precise terms of the contract have not been
pleaded with clarity.
It is also not clear whether Mr Mbambi was
dismissed or whether his matter is subject to disciplinary processes.
Parties
[4]
For the sake of convenience, the parties
shall simply be referred to as the ‘Plaintiff’
(Mr Mbambi) and the ‘Defendant’
(Tyeks Security
Services).
The issue
[5]
By agreement of the parties, this Court has
been asked to resolve the special plea, and therefore, the only issue
is whether this
Court has jurisdiction to entertain the dispute or
whether the dispute falls within the exclusive jurisdiction of the
Labour Court.
The pleadings
[6]
In the amended particulars of claim, Mr
Mbambi, in setting out his cause of action, averred as follows:
“
(a)
The cause of action took place within the area of jurisdiction of the
above honourable court.
(b)
On or about the 1
st
day of April 2019 and at Port St Johns
the parties concluded a written fixed-term contract of employment
(“the contract”)
in terms of which Mr Mbambi was employed
by the defendant as a security officer. The defendant refused to give
Mr Mbambi a copy
of the contract, despite several requests by Mr
Mbambi to do so, consequently Mr Mbambi does not have in his
possession, and is
unable to annex a copy thereof hereto. In
confirmation hereof an affidavit by Mr Mbambi’s attorney is
annexed hereto marked
“A”.
(c)
The material express and tacit terms of the contract between the
parties are,
inter alia
, as follows –
(c.i)
That Mr Mbambi would render personal services to the defendant as a
security officer stationed
at South African Post Office, Port St
Johns, (“hereinafter referred to as the site”);
(c.ii)
That Mr Mbambi would be entitled to remuneration on a monthly basis
as follows:
(c.ii.i)
Basic salary of R3744.00
(c.ii.ii)
Cleaning allowance of R31.00
(c.ii.iii) Area 3
premium R60.00
(c.ii.iv) Overtime
at an hourly rate of 18.00 for overtime work reasonable performed
from time to time;
(c.ii.v) Sunday pay
at the rate of 1.6 times the normal rate for work performed on
Sunday.
(c.iii)
That the contract is specifically linked to a service agreement
between the defendant and the South African
Post Office for the
provision of security and related services by the former to the
latter;
(c.iv)
That the contract would run for a period of five years with effect
from 01 April 2019 up to and including
31 March 2025;
(c.v)
That any party wishing to terminate the contract would have to give
the other party a notice of the
intended termination in accordance
with the legal notice periods.
(d)
Mr Mbambi commenced employment in terms of the basic conditions of
employment Act
75 of 1997 and in terms of the conditions set out
above on 01 April 2019 and at the site;
(e)
The defendant has evinced a deliberate and unequivocal determination
and intention
to no longer be bound by the contract in one or more of
the following material manner-
(e.i)
On the 15
th
June 2019, without any notice and/or awful
cause, it-
(e.i.i)
Arbitrary prevented Mr Mbambi from continuing with his duties at the
site, and replaced him with another
security officer, thereby
repudiating the contract;
(e.i.ii)
Offered Mr Mbambi a new contract of employment in which he would be
placed at a certain Bead & Breakfast
enterprise in Port St Johns,
which Mr Mbambi rejected;
(e.i.iii) It
last paid Mr Mbambi his salary on 30 June 2019;
(e.i.iv) On the
18
th
July 2019 its Human Resource Manager, namely, one Mr
Daniels, verbally informed Mr Mbambi’s attorney, Mr
Magoxo
,
that plaintiff was dismissed from employment in June 2019;
(f)
By way of a letter dated 8
th
November 2019, addressed by
Mr Mbambi’s attorneys to the defendant Mr Mbambi elected to
accept the repudiation, and terminated
the contract between the
parties. The aforesaid letter is annexed marked “B”. Mr
Mbambi submits that he relies on basic
conditions of employment Act
75 of 1997 (as amended) and repudiation of a contract on his claim.
(g)
As a result of the defendants aforesaid repudiation, Mr Mbambi
suffered damages in
the sum of R408 825 (four hundred and eight
thousand eight hundred and twenty five rands) which represents past
future remuneration
payable to Mr Mbambi for the duration of the
contract, calculated with effect from July 2019 up to and including
March 2025.”
[7]
In response to Mr Mbambi’s amended
particulars of claim, Tyeks Security Services raised the special plea
as follows–
“
A.
JURISDICTION
WHEREAS
the Defendant pleads that this Honourable Court
has no jurisdiction over this matter, as Mr Mbambi absconded from
duty and no Disciplinary
hearing has been scheduled yet in respect of
the same.
AND WHEREAS this
Honourable Court lacks jurisdiction to hear matters where an order is
sought for matters where the Labour Court,
Commission for
Conciliation, mediation and Arbitration (CCMA) and Bargaining
Councils have exclusive jurisdiction.
WHEREFORE
the Defendant on this ground alone prays that the
claim of Mr Mbambi be dismissed with costs.”
The law on
jurisdiction
[8]
An
assessment of jurisdiction must be based on the parties’
pleadings as opposed to the substantive merits of the case.
[2]
When a court’s jurisdiction is challenged, the court should
base its conclusion on the pleadings, as they contain the legal
basis
of the claim under which Mr Mbambi had chosen to invoke the court’s
competence.
[3]
[9]
In
the case of
Makhanya
v University of Zululand
,
[4]
Nugent JA held–
“
In
general the high courts thus exercise the original authority of the
state to resolve all disputes, of any kind, that are capable
of being
resolved by a resort to law, unless that authority has been assigned
to another court. When a high court resolves a contractual
claim it
exercises that original jurisdiction. When it considers a claim for
enforcement of a constitutional right it exercises
that original
jurisdiction. So too when it enforces a statutory right.
But the state might also
create special courts to resolve disputes of a particular kind.
Generally those will be disputes concerning
the infringement of
rights that are created by the particular statute that creates the
special court (though that will not always
be so). When a statute
confers judicial power upon a special court it will do so in one of
two ways. It will do so either by (a)
conferring power on the special
court and simultaneously (b) excluding the ordinary power of the high
court in such cases (it does
that when “exclusive jurisdiction”
is conferred on the special court). Or it will do so by conferring
power on the
special court without excluding the ordinary power of
the high court (by conferring on the special court jurisdiction to be
exercised
concurrently with the original power of the high courts).
In the latter case the claim might be brought before either court.
In the present context
exclusive jurisdiction to enforce LRA rights has been assigned to the
Labour Forums. But in respect of the
enforcement of both contractual
and constitutional rights the high courts retain their original
jurisdiction assigned to them by
the Constitution. In both cases
equivalent jurisdiction has been conferred upon the Labour Court to
be exercised concurrently with
the high courts
.”
[10]
In
the case of
Chriwa
v Transnet Ltd and Others
,
[5]
Ngcobo J referred to the judgment of O’Regan J in
Fredericks
and Others v MEC for Education and Training, Eastern Cape and
Others
[6]
[2001] ZACC 6
;
2002
(2) SA 693
(cc)
(2002 BCLR 113
; (2002) 23 ILJ 81) and said the
following–
“
O’
Regan J, in writing for a unanimous court . . . held that section
157(1) had to be interpreted in the light of section
169 of the
Constitution. That section permits constitutional matters to be
assigned to courts other than the High Court, but they
must be courts
of equal status. O’ Regan J held that the Commission for
Conciliation Mediation and Arbitration (CCMA) is
not a court of equal
status and that the review of CCMA decisions is not substitute for
considering a matter afresh. Section 157
(1) of the LRA must, she
concluded, insofar as it concerns constitutional matters, be read to
refer only to matters assigned for
initial considerations by the
Labour Court.
This Court also found
that:
“
It
is quite clear that the overall scheme of the Labour Relations Act
does not confer a general jurisdiction on the Labour Court
to deal
with all disputes arising from employment… As there is no
general jurisdiction afforded to the Labour Court in employment
matters, the jurisdiction of the High Court is not ousted by section
157(1) simply because a dispute is one that falls within the
overall
sphere of employment relations.”
The Court concluded that,
absent a specific provision conferring jurisdiction of a
constitutional matter on the Labour Court, the
High Court enjoyed
concurrent jurisdiction to decide constitutional matters, including
administrative action claims.”
[11]
Section 77 of the BCEA deals with
jurisdiction, and it provides –
“
(1)
Subject to the Constitution and the jurisdiction of the Labour Appeal
Court, and except
where his 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
.”
[12]
In
Amalungelo
Workers’ Union and Others v Philip Morris South Africa (Pty)
Limited and Another
,
[7]
it was held–
“
The
section tells us in unambiguous terms that the Labour Court has
exclusive jurisdiction over matters arising from the Basic Conditions
Act. The only exception is in respect of where the Act itself
provides otherwise. For example, section 77(3) stipulates that the
Labour Court enjoys concurrent jurisdiction with civil courts in
matters concerning contracts of employment
.
”
[13]
The
proper approach to determine the application of section 77(3) of the
BCEA was set out crisply in
National
Prosecuting Authority v Public Servants Association on behalf of
Meintjies & Others; Minister of Justice & Correctional
Services & Another v Public Servants Association on behalf of
Meintjies & Others
,
[8]
where it was held–
“
The
notice of motion and founding affidavit has to be analysed to
ascertain whether the enforcement of employment contract terms
was
relied upon. In performing this exercise, substance must prevail over
form and proper regard must be had to context.”
[14]
It is also prudent to refer to the
provisions of
section 157
of the
Labour Relations Act 66 of 1995
which provides–
“
(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 labour relations;
(b)
any dispute over the
constitutionality of any executive or administrative act or conduct
of any threatened executive or administrative
act or conduct, by the
State in its capacity as an employer; and
(c)
the application of any law for the administration of which the
Minister is responsible.”
[15]
Based on the above principles of
jurisdiction, I will consider the contentions of the parties
regarding the jurisdiction of this
Court. Before dealing with the
issue of jurisdiction, I find it apposite to first briefly set out
the principles relating to repudiation
of contracts. I do so because
Mr Mbambi, in his particulars of claim, has alleged that he relies on
the repudiation of the contract,
in addition to the provisions of the
BCEA. It is necessary to determine whether there was a repudiation of
the contract or whether
same is relevant.
Repudiation
[16]
In
Dave
Pretorius v Kenneth Bedwell
,
[9]
Mokgohloa JA held–
“
It
is settled law that repudiation of a contract occurs where one party
to a contract, without lawful grounds, indicates to the
other party,
whether by words or conduct, a deliberate and unequivocal intention
to no longer be bounds by the contract. Then the
innocent party will
be entitled to either: (i) reject the repudiation and claim specific
performance; or (ii) accept the repudiation,
cancel the contract and
claim damages. If he or she elects to accept the repudiation, the
contract comes to an end upon the communication
of the acceptance of
the repudiation to the party who has repudiated. Only then does a
claim for damages arise. Accordingly, prescription
commences to run
from that date.”
[17]
Mr Mbambi, in his amended particulars of
claim, had averred that on 18 July 2019, he was informed by the Human
Resources Manager,
Mr Daniels, that he was dismissed in June 2019. He
then instituted these proceedings on 12 November 2019. In such
circumstances,
when Mr Mbambi instituted the action, he was no longer
an employee of Tyeks Security Services. It, therefore, follows that
Mr Mbambi’s
contract was not terminated, but rather he was
dismissed as an employee.
[18]
Whether the dismissal was lawful, unfair or
otherwise is not an issue before this Court. For the same reasons,
the Court has not
been asked to determine the validity of the
dismissal, and therefore, repudiation of the contract does not arise
on these facts,
even on the assumption that Mr Mbambi truly relies on
a repudiation of the contract, and same has not been properly
pleaded. The
Court has no factual foundation to determine whether
there was repudiation or not. I do find it startling, though, that
Tyeks Security
Services, in the special plea, suggests that the
disciplinary hearing is yet to be scheduled in respect of Mr Mbambi's
absconding
from work. I think that such an allegation flies in the
face of Mr Mbambi’s allegation that he was dismissed in June
2019.
For the reasons that there is either a pending disciplinary
hearing or that Mr Mbambi was dismissed, the remedy for Mr Mbambi
cannot
be a repudiation of his contract. I do add that the allegation
against Mr Mbambi, which remains undisputed, is that he absconded
from work and subjected to a disciplinary process.
Does this Court have
jurisdiction?
[19]
The special plea raised by Tyeks Security
Services is that this Court has no jurisdiction. In these
circumstances, the Court must
assess the pleadings for the reasons
that the Court should base its conclusion on Mr Mbambi’s
pleadings as they contain the
legal basis of the claim under which he
had chosen to invoke the Court’s competence. As these are
action proceedings, the
assessment must be based on the particulars
of claim. For the reasons that will soon become apparent, I quote the
relevant parts
of the amended particulars of claim.
[20]
In paragraphs 7.1 to 7.3, Mr Mbambi makes
these allegations–
“
7.1
On the 15
th
June 2019, without any notice and/or awful cause, it–
7.1.1
Arbitrary prevented Mr Mbambi from continuing with his duties at the
site, and replaced him with another
security officer, thereby
repudiating the contract;
7.1.2
Offered Mr Mbambi a new contract of employment in which he would be
placed at a certain Bead &
Breakfast enterprise in Port St Johns,
which Mr Mbambi rejected;
7.2.3
It last paid Mr Mbambi his salary on 30 June 2019;
. . .
7.3
On the 18
th
July 2019 its Human Resource Manager, namely,
one Mr Daniels, verbally informed Mr Mbambi’s attorney, Mr
Magoxo
, that plaintiff was dismissed from employment in June
2019.”
[21]
On proper scrutiny of the allegations, the
true nature of Mr Mbambi’s complaint is his dismissal and the
unfair labour practice
by Tyeks Security Services. Tyeks Security
Services, according to him, commenced by purportedly transferring him
from his station
at the Post Office and attempted to place him at a
certain bed and breakfast enterprise. Mr Mbambi alleged that he was
arbitrarily
prevented from continuing with his duties and replaced
with another security officer. On the other hand, Tyeks Security
Services
alleged that Mr Mbambi absconded from work, resulting in his
matter being referred for disciplinary proceedings. Mr Mbambi has not
alleged in his particulars of claim that he, at any stage after his
dismissal, tendered his services to Tyeks Security Services
or
availed himself. It is unlikely that a dismissed employee would
remain in contract, for which he can claim repudiation, more
so that
the allegation against him is that he absconded from work.
[22]
I hold the view that in these
circumstances, Mr Mbambi’s recourse should have been found on
the remedies provided by the LRA
and the BCEA. This is a matter in
which the Labour Court and the Bargaining Council enjoy exclusive
jurisdiction. I agree with
the submission of Mr
Mahambi
that the High Court has no jurisdiction to entertain the matter. In
Chirwa v Transnet LTD and Others
para
96, the Court held that–
“
In
my view it could not have been the intention of the Legislature to
allow an employee to raise what is essentially a labour dispute
in
terms of the Act as a constitutional matter under the provisions of s
157(2) of the Act. In my view it would run counter to
the purpose and
objects of the Act with which I have dealt earlier in this judgment.
To conclude otherwise would mean that the
High Court is effectively
called upon to determine a right which has been given effect to and
which is regulated by the Act. To
hold otherwise would be to ignore
the remainder of the provisions of the Act and would enable the
astute litigant simply to bypass
the whole conciliation and dispute
resolution machinery created by the Act. This may give rise to ‘forum
shopping’
simply because it is convenient to do so or because
one of the parties failed to comply with the time limits laid down by
the Act
as contended by the first respondent in the present matter.”
Conclusion
[23]
I find that the High Court has no
jurisdiction in respect of the dispute between Mr Mbambi and Tyeks
Security Services. The matter
falls exclusively within the
jurisdiction of the Labour Court. It follows that the action should
not be entertained for the reason
that the Court has no jurisdiction.
At the time of instituting the proceedings, Mr Mbambi, in his
version, was already dismissed.
Accordingly, no contractual rights
and obligations existed between the parties. Accordingly, the action
is not about the enforcement
of a contract, nor constitutional rights
or statutory obligations. The underlining cause of the dispute is the
unfair labour practice.
Costs
[24]
The general rule is that costs should
follow the results unless there is good cause to depart. I will
deviate from the general rule
and decline Tyeks Security Services'
costs of litigation. The plea is not a model of clarity. It is
slovenly drafted and, in many
respects, confusing. In general, the
plea is argumentative. The special plea suggests that Mr Mbambi was
charged and subjected
to disciplinary proceedings for absconding from
work. On the other hand, the Human Resource Manager of Tyeks Security
Services
informed Mr Mbambi that he was dismissed from work in
June 2019. I may add that Tyeks Security Services’ plea is
fashioned
in the form of an affidavit, which is not permissible. In
this regard, I do quote from the plea. Paragraph 15 reads–
“
AD
PARAGRAPH 8
Contents of this
paragraph are denied and Defendant submit that absconding does not
amount to repudiation. I further submit that
a letter was written to
Plaintiff’s Attorneys indicating Plaintiff’s abscondment,
but no response had since been forthcoming.
It is Defendants
submission that the dispute falls in the realm of
Labour Relations
Act and
it is denied that Defendant repudiated the contract. It is
Tyeks Security Services’s submission that Mr Mbambi is not
entitled
to remuneration when he elected not to render his services
and it is therefore denied that he suffered damages in the amount of
R334 362.”
[25]
Paragraph 12 of the plea reads–
“
AD
PARAGRAPH 7.2
Contents of this
paragraph are admitted and I submit that Mr Mbambi reported for duty,
Plaintiff absconded thereafter and we sought
him without success on
several occasion until his Attorney approved our offices on or about
July 2018.”
[26]
On reading of Tyeks Security Services’
entire plea, it is obvious that the plea was haphazardly and
carelessly drawn. The
plea is an excipiable one. For these reasons, I
decline to award costs in favour of Tyeks Security Services. The
result is that
each party should bear its own costs.
Order
[27]
In the result, the following order is made–
(1)
Plaintiff’s action is dismissed;
(2)
Each party shall bear its own costs.
M NOTYESI
ACTING JUDGE OF THE
HIGH COURT
Appearances
Attorney
for Plaintiff
L
Mthambo
Attorneys
for Plaintiff
L
Mthambo Attorneys
Mthatha
Counsel
for the Defendant
Adv
Mhambi
Attorneys
for the Defendant
Mbulelo
Qotoyi Attorneys
Mthatha
[1]
Basic
Conditions of Employment Act 75 of 1997 (as amended).
[2]
Gcaba
v Minister of Safety and Security & Others
[2009]
ZACC 26
;
2010 (1) SA 238
(CC);
[2009] 12 BLLR 1145
(CC) para 75.
[3]
Lewame
v Fochem International (Pty) Ltd
[2019]
ZASCA 114
para 7.
[4]
Makhanya
v University of Zululand
[2009]
ZASCA 69
;
2010 (1) SA 62
(SCA);
[2009] 4 All SA 146
(SCA) paras
24-26.
[5]
Chriwa
v Transnet Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC) at
422E-423B.
[6]
Fredericks
and Others v MEC for Education and Training Eastern Cape and Others
[2001] ZACC 6
;
2002 (2) SA 693
;
2002 (2) BCLR 113
paras 163-164.
[7]
Amalungelo
Workers' Union and Others v Philip Morris South Africa (Pty) Limited
and Another
[2019] ZACC 45
;
2020 (2) BCLR 125
(CC);
[2020] 3 BLLR 225
(CC) para
20.
[8]
National
Prosecuting Authority v Public Servants Association on behalf of
Meintjies & Others; Minister of Justice & Correctional
Services & Another v Public Servants Association on behalf of
Meintjies & Others
[2021] ZASCA 160
;
2022 (3) SA 409
(SCA);
[2022] 1 All SA 353
(SCA)
para 61.
[9]
Dave
Pretorius v Kenneth Bedwell
[2022] ZASCA 4
para 10. See also
Sandown
Travel (Pty) Ltd v Cricket South Africa
[2012] ZAGPJHC 249;
2013 (2) SA 502
(GSJ) para 19.