About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 69
|
|
Mamabolo v South African National Blood Service and Another (6732/2018) [2019] ZALMPPHC 69 (5 December 2019)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED
CASE
NUMBER: 6732/2018
In
the matter between:
MOLATELO
PRECIOUS MAMABOLO
PLAINTIFF
AND
SOUTH
AFRICAN NATIONAL BLOOD SERVICE
FIRST DEFENDANT
NICOLE
ZIEROLD
SECOND DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff has instituted action against the defendants claiming
an amount of R
6 852 913-44 for all alleged loss of income. The
plaintiff alleges that whilst employed at Ampath Trust as a
registered nurse,
she saw an advertisement for a position of a Donar
Care Officer at the defendants’ workplace. She applied for the
position
and she was invited to attend the interviews on the 6
th
July 2018. On the 2
nd
August 2018 the second defendant
phoned her to attend a driving assessment of which she did.
[2]
On the 3
rd
August 2018 the second defendant phoned her
notifying her that she was the successful candidate for the position
of a Donar Care
Officer. The plaintiff resigned from her employment
with the intention of resuming her duties at the respondents’
workplace
with effect from the 1
st
September 2018.
However, the defendants did not send her an appointment letter. When
she enquired about the appointment letter
she was taken from pillar
to post. When realising that it seems that the new appointment will
not materialize, she went back to
her old employer to try and
withdraw her resignation of which she was unsuccessful. On the 30
th
August 2018 the second respondent informed her that the position she
had been appointed for has been put on hold. Later she was
informed
that they have advertised two positions but has filled one position
with the candidate that has scored the highest marks,
but that the
person assigned to inform her of the outcome has failed to do so.
[3]
Based on the explanation given to her, the plaintiff issued summons
against the defendants
alleging that the defendants have acted
negligently, and that their negligent conduct led her to resign from
her employment. The
plaintiff alleges that as a results of resigning,
she acted to her detriment as she is now being unemployed and without
income
of which the defendants are to blame.
[4]
The defendants defended the plaintiff’s action. The defendants
have raised an exception
to the plaintiff’s particulars of
claim alleging that they lack averments which are necessary to
sustain her action. The
grounds of the defendants’ exception
are that the withdrawal of the alleged offer amounts to a dismissal
and that the plaintiff
should have enforced her rights at the CCMA or
Labour Court. According to the defendants, the particulars of claim
reveal that
the plaintiff essentially seeks redress for unfair
dismissal.
[5]
The defendants argues that this court lacks jurisdiction to
adjudicate this matter since
section 185 of the Labour Relations Act
(LRA)
[1]
creates certain rights
for employees that include the right not to be unfairly dismissed,
and the right not to be subjected to
unfair labour practice. The
defendants submit that in terms of section 193 (1) of the LRA, the
remedies for unfair dismissal and
unfair labour practice are
reinstatement and compensation.
[6]
The plaintiff argued that the contract of employment was not
concluded as the offer by
the defendants was based on a mistake other
than factual. The plaintiff contends that the defendants acted
negligently and that
no valid contract ever existed. It is further
the plaintiff’s contention that her claim for damages is based
on the fact
that she acted to her detriment as a results of the
defendants’ negligent misrepresentation. The plaintiff contends
that
there was no existing employment contract which the defendant
has withdrawn, and therefore she could not have referred her claim
to
either the CCMA or the Labour Court as a dispute in terms of the LRA.
[7]
It is settled law that in order to succeed, an excipient has a duty
to persuade the court
that upon every interpretation which the
pleading in question can reasonably bear, no cause of action is
disclosed, failing which
the exception ought not to be upheld.
[8]
In
Living
Hands v Ditz
[2]
Makgoka J as he was then said:
“
Before I consider
the exceptions, an overview of the applicable general principles
distilled from case law is necessary:
(a)
In
considering an exception that the pleading does not sustain a cause
of action, the court will accept, as true, the allegations
pleaded by
the plaintiff to assess whether they disclose a cause of action.
(b)
The object
of an exception is not to embarrass one’s opponent or to take
advantage of a technical flaw, but to dispose of
the case or a
portion thereof in an expeditious manner, or to protect oneself
against an embarrassment which is so serious as to
merit the costs
even of an exception.
(c)
The purpose
of an exception is to raise a substantive question of law which may
have the effect of settling the dispute between
the parties. If the
exception is not taken for that purpose, an excipient should make out
a very clear case before it would be
allowed to succeed.
(d)
Am
excipient who alleges that a summons does not disclose a cause of
action must establish that, upon any construction of the particulars
of claim, no cause of action is disclosed.
(e)
An
over-technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out
cases
without legal merits.
(f)
Pleadings
must be read as a whole and an exception cannot be taken to a
paragraph or a part of a pleading that is not self-contained.
(g)
Minor
blemishes and unradical embarrassments caused by a pleading can and
should be cured by further particulars”
[9]
The defendants’ exception is based on the jurisdiction of this
court to hear the
plaintiff’s claim. Normally an objection that
a court lacks the necessary jurisdiction to hear the matter is
ordinarily raised
by way of a special plea.
[10]
In
Makhanya
v University of Zululand
[3]
Nugent JA said:
“
Jurisdictional
challenges will be raised either by an exception or by a special
plea, depending on the ground upon which the challenge
arises. There
will be some cases in which the jurisdiction of a court is dependent
upon the existence of a particular fact (often
called a
‘jurisdictional fact’). Where the existence of that fact
is challenged it will usually be in a special plea,
and matter will
proceed to a factual enquiry confined to that issue. In other cases
the existence or otherwise of jurisdiction
to consider the case will
appear from particulars of claim and in those cases the challenge
will be raised by an exception. In
such cases the court that
considers the challenge might not even be aware of whether or not the
plaintiff intends raising any defence
at all to the claim. But in
both cases the issue must necessarily be disposed of first, because
upon it depends the power of the
court to make any further orders.”
[11] In the case
at hand the challenge is not based on the existence of a
jurisdictional fact, but on the nature of the claim,
and that appears
from the plaintiff’s particulars of claim. It was therefore
appropriate for the defendants to raise the
challenge by way of an
exception.
[12]
The second defendant when he informed the plaintiff that she was
successful in her interviews, was basically
making an offer of
employment to the plaintiff. That is supported by the fact that he
even asked her as to when she will be available
to commence working.
By telling the second defendant that she will have to serve a month
notice, she was accepting the offer. The
acceptance of the offer was
confirmed when she resigned from her previous employment in order to
take the new position.
[13]
The question to be determined is whether the plaintiff was an
employee in order to qualify for protection
under the LRA. In
Wyeth
SA (PTY) Ltd v Manqele and Others
[4]
Nkabinde AJA said:
“
Given the
resultant gross hardship, ambiguity and absurdity in the adoption of
the literal interpretation, I am of the view that
this court is thus
entitled to depart from such a literal and ordinary construction and
extend the literal construction of the
definition as including a
person who concluded a contract of employment which is to commence at
a future date. Common sense, justice
and values of the constitution
would, in my view, best be served by extending the literal
construction to include such a person.
That interpretation will be in
line with the meaning of ‘dismissal’ in s 186 (1) (a). It
will also in my view, avoid
limiting the constitutional right to
‘unfair labour practice’ to a person who works or has
rendered services and is
entitled to remuneration. The focus in s
186, like its English counterpart, is on the ‘termination of a
contract of employment.’
Grogan ‘Employment Law’
vol 19 part 3 pp 15-17 opines that had the contract not been
repudiated, the - would be employee
would have become an employee.
Grogan continues to draw an analogy between a person in the position
of Manqele and unborn children.
He states that –
‘…
in a
sense, a situation is similar to unborn children, to whom the law is
prepared to extend legal rights by way of a fiction. The
only way the
court can now remove the absurdity to which Pillar J refers in Jack’s
case-that unsuccessful applicants for
employment are awarded greater
rights under the LRA than those who have actually been appointed-is
to extent the statutory definition
by means of a similar fiction.
They might be assisted by the fact that the Constitution gives
“everyone” – not
only employees the right to fair
labour practices’
I
could not agree more”
[14] A
contract of employment was concluded when the plaintiff accepted the
defendants’ offer. It was therefore
no longer possible for the
defendants to unilaterally withdraw the offer of employment of the
plaintiff. In
Du
Preez v SALGBC and Others
[5]
Lagrange J said:
“…
I am
inclined to agree with the applicant that it was his employment which
was terminated, even though he had not started to render
services.
The Labour Appeal Court has held that common sense, justice and
values of the Constitution would be best served by extending
the
literal construction of the definition of an employee in section 213
of the LRA to include someone who had concluded a contract
of
employment which would commences at a future date.”
[15]
In my view the plaintiff for all intendeds and purposes was an
employee of the defendants immediately after
she had accepted the
offer and thereafter perfected that by resigning from her previous
employment. She therefore enjoyed all the
rights of an employee and
was protected by the LRA against any form of unfair conduct by the
defendants. The unilateral withdrawal
of the offer by the defendants
amounted to a dismissal.
[16]
The LRA has created specialized forums to deal with disputes of
alleged unfair dismissals. In
SAMWU
v Mokgatla
[6]
Dambuza
JA said:
“
[12] But what the
court
a
quo
missed as did the court in Valuline, are the fundamental guiding
principle underlying the determination of the jurisdiction of
the
respective courts over disputes provided for under the LRA. These
were laid down by the Constitutional Court in Chirwa v Transnet
Ltd
and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC); (2008) 29 ILJ 73;
2008 (3) BCLR 251
;
[2008] 2 BLLR 97
;
[2007] ZACC 23)
and Gcaba (above). In para 123 of
Chirwa the Constitutional Court said:
‘
While s 157 (2)
remains on the statute book it must be construed in the light of the
primary objectives of the LRA. The first is
to establish a
comprehensive framework of law governing the labour and employment
relations between employers and employees in
all section. The other
is the objective to establish the Labour Court and Labour Appeal
Court as superior Courts, with exclusive
jurisdiction to decide
matters arising from the LRA. In my view the only way to reconcile
the provisions of section 157 (2) and
harmonise them with those of
section 157 (1) and the primary objects of the LRA is to give s 157
(2) a narrow meaning. The application
of section 157 (2) must be
confined to those instances if any, where a party relies directly on
the provisions of the Bill of Rights.
This of course is subject to
the constitutional principle that we have recently reinstated,
namely, that where legislation is enacted
to give effect to a
constitutional right, a litigant may not bypass that legislation and
rely directly on the Constitution without
challenging that
legislation as falling short of the constitutional standards’.
[13]
And in Gcaba the Constitutional Court held the following in para 56
‘
(A)nother
principle of policy consideration is that the Constitution recognises
the need for specificity and specialisation in a
modern and complex
society under the rule of law. Therefore, a wide range of rights and
the respective areas of law in which they
apply are explicitly
recognized in the Constitution. Different kinds of relationships
between citizens and the state and citizens
and citizens amongst each
other are dealt with in different provisions. The legislature is
sometimes specifically mandated to create
detailed legislation for a
particular area, like equality, just administrative action (PAJA) and
labour relations (LRA). Once a
set of carefully crafted rules and
structures has been created for the effective and speedy resolution
of the disputes and protection
of rights in a particular area of law,
it is preferable to use that particular system. This was emphasised
in Chirwa by both Skweyiya
J and Ngcobo J. If litigants are at
liberty to relegate the finely tuned dispute-resolution structures
created by the LRA, a dual
system of law could fester in cases of
dismissal of employees. “
[17]
The plaintiff’s contention is that her claim for damages is
premised on the fact that she acted to
her detriment as a result of
the defendants’ negligent misrepresentation, and that the
contract of employment never came
into existence. I have already held
that the employment contract was concluded and therefore there was an
employer and employee
relationship. It is therefore immaterial in the
manner in which the plaintiff has drafted her particulars of claim.
Even though
the plaintiff contends that it relies on negligent
misrepresentation, it can be determined from the particulars of claim
that the
main issue in this matter is a labour dispute.
[18]
The plaintiff’s dispute falls within the provisions of the LRA
and must therefore be resolved within
the dispute resolution
mechanism provided for in the LRA. In
Gcaba
v Minister for Safety and security and Others
[7]
the
court held that labour issues are to be dealt within the specialized
fora and persued through the purpose-built mechanism
established by
the LRA. In my view, there is merit in the dependants’
exception and it stand to be upheld.
[19]
The question which must now be determined is whether to struck out
the plaintiff’s particulars of
claim or to grant the plaintiff
leave to amend. In my view, it will be fruitless to grant the
plaintiff leave to amend her particulars
of claim since the
plaintiff’s dispute does not belong to this court. The proper
remedy will be to struck out the plaintiff’s
particulars of
claim.
[20]
In the results I make the following order.
20.1
The defendants’ exception is upheld.
20.2
The plaintiff’s particulars of claim are struck out in its
entirety.
20.3
Plaintiff to pay the defendants’ costs on party and party
scale.
M F KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR
APPLICANT
: ADV LUNGA SIYO
INSTRUCTED BY
:
C N PHUKUBJE
ATTORNEYS
INC.
COUNSEL FOR 1
ST
& 2
ND
RESPONDENTS : ADV
MJ MOLAPO
INSTRUCTED BY
: HLM
MAMABOLO
ATTORNEYS
DATE OF HEARING
:
4
TH
NOVEMBER 2019
DATE OF JUDGEMENT
:
5
TH
DECEMBER 2019
[1]
Act 66 of 1995 as amended
[2]
2013 (2) SA 368
(GSJ) at 374G- 375C
[3]
2010 (1) SA 62
(SCA) at G-I
[4]
(SA 50/03)
[2005] ZALAC 1
(23 March 2005) at Para
45
[5]
[2017] ZALCC 11
(29 March 2017) at paras 12 and
13
[6]
2016 (5) SA 89
(SCA)at Para 12
[7]
2010 (1) SA 238
(CC)