Summary of Judgment

1. Introduction

These proceedings took the form of a motion application in the High Court of South Africa, Limpopo Division, Polokwane. The applicants, Kole Mack Molepo and eight others, approached the court for an order compelling the respondent, the Head of Department, Department of Education, Limpopo Province, to pay them educator incentives retrospectively in terms of clause 8 of Government Gazette No 30678, Volume 511, dated 18 January 2008.

All applicants were educators employed by the Limpopo Department of Education and stationed at Gowe Primary School in Driekop village. The dispute concerned the applicants’ claimed entitlement to incentive payments allegedly applicable to educators working at qualifying schools.

The respondent opposed the application and raised four points in limine, including a jurisdictional objection. The court addressed jurisdiction first, as a threshold issue, and disposed of the matter on that basis without determining the remaining preliminary objections or the merits of the incentive claim.

2. Material Facts

The material facts accepted or relied upon by the court were limited, because the application was resolved on jurisdiction.

It was common cause in the papers that the applicants were educators employed by the Department of Education (Limpopo Province) and were stationed at Gowe Primary School. The applicants’ case was that the school fell under quintile 1, and that, on that basis, they qualified for incentives under clause 8.1(b) of the relevant Government Gazette.

The respondent’s opposition was framed through points in limine rather than a detailed factual rebuttal on eligibility. In argument, the respondent characterised the claim as one concerning the provision of benefits in the sense contemplated by the Labour Relations Act 66 of 1995, and contended that it therefore belonged in the statutory dispute-resolution system rather than in the High Court.

A procedural fact that became material to the court’s approach was that the applicants did not file a replying affidavit. Instead, they filed a supplementary affidavit without leave. The court treated this as non-compliance with the Uniform Rules of Court and rejected the supplementary affidavit because no leave had been sought and no condonation application had been brought.

To the extent that there was a dispute between the parties, it was not a factual dispute on the school’s quintile status that the court resolved; rather, it was a dispute of legal characterisation: whether the claimed incentive was to be treated as a benefit (suggesting an unfair labour practice dispute) or as a contractual entitlement falling outside the Labour Relations Act framework.

3. Legal Issues

The central legal questions were jurisdictional and classificatory.

The first question was whether the High Court had jurisdiction to entertain a claim by public-sector educators seeking payment of incentives under the Government Gazette, or whether the dispute fell within the exclusive labour dispute-resolution mechanisms created by the Labour Relations Act 66 of 1995.

That jurisdictional enquiry depended on a second question: whether the incentive contemplated by clause 8.1(b) of the Government Gazette constituted a “benefit” for purposes of section 186(2)(a) of the Labour Relations Act, in which case the matter would be treated as an unfair labour practice dispute concerning benefits.

The dispute thus predominantly concerned a question of law, namely the correct legal classification of the claimed incentive and the consequences of that classification for forum and jurisdiction, with an element of applying that classification to the incentive scheme described in the Government Gazette.

4. Court’s Reasoning

The court dealt first with the respondent’s jurisdiction point in limine, on the basis that jurisdiction must be established before any further consideration of the dispute.

Before addressing jurisdiction, the court determined the status of the applicants’ supplementary affidavit. Referring to Rule 6(5) of the Uniform Rules of Court, the court noted that motion proceedings ordinarily allow three sets of affidavits (founding, answering, and replying). Any further affidavits require the leave of the court. The court also referred to Rule 27(3), which provides for condonation where there has been non-compliance with the Rules. Because the supplementary affidavit had been filed without leave and without a condonation application, the court rejected it and proceeded without regard to its contents.

On the merits of the jurisdictional characterisation, the applicants’ counsel submitted in argument that the incentive did not amount to a benefit but rather constituted a contractual dispute, and that the High Court therefore had jurisdiction. The court identified the decisive enquiry as whether the incentive in clause 8.1(b) could be classified as a benefit.

In analysing the meaning of “benefit”, the court relied on the distinction drawn in Northern Cape Provincial Administration v Hambidge NO and Others [1999] 7 BLLR 698 (LC) between remuneration (as an essential element of the employment contract) and “benefits” (as additional advantages or perquisites, often characterised as non-wage benefits). The court noted, with reference to Hambidge, that a benefit is something “extra” apart from remuneration and may be part of the naturalia of employment rather than the essentialia.

The court then considered the incentive scheme itself as described in the Government Gazette. It noted that the incentives were published with a heading indicating an improvement in conditions of service for educators and that the scheme applied to employees who met criteria and was conditional upon the employee signing an incentive contract. The court reasoned that once such an incentive contract is signed, it would form part of the employee’s terms and conditions of employment. The court further referred to clause 12 of the Government Gazette, which states that the employer must pay the incentive as a non-pensionable allowance, in cash or in kind. On that basis, the court concluded that the incentive is an allowance for employees working in remote schools who meet the prescribed criteria and, accordingly, constitutes a benefit.

Having classified the incentive as a benefit, the court applied section 186(2)(a) of the Labour Relations Act, which defines an unfair labour practice to include unfair conduct relating to the provision of benefits. The court concluded that the applicants’ dispute fell within the ambit of section 186(2) of the Act.

The court then considered forum. It stated that disputes arising between employer and employee that fall within the provisions of the Labour Relations Act must be resolved through the Act’s dispute-resolution mechanisms. In support, the court referred to Chirwa v Transnet Ltd and Others [2007] ZACC 23; 2008 (4) SA 367 (CC), noting the Constitutional Court’s statement that a dispute concerning alleged non-compliance with the Labour Relations Act must be determined in the specialist labour fora and cannot be avoided by reframing it as an administrative-law or constitutional claim. The court also relied on Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC) for the proposition that labour issues should be dealt with in specialised fora using the mechanisms created by the Labour Relations Act.

On that basis, the court reasoned that the appropriate forum was the relevant public service bargaining council. Referring to section 35 of the Labour Relations Act (empowering the establishment of a bargaining council for the public service), the court held that because the Department of Education falls within the public service, the dispute should be dealt with in the General Public Service Sectoral Bargaining Council (GPSSBC). The court therefore upheld the point in limine that it lacked jurisdiction.

Because the jurisdiction point was dispositive, the court expressly found no need to address the remaining points in limine.

5. Outcome and Relief

The court upheld the respondent’s point in limine that the High Court lacked jurisdiction to entertain the dispute.

The application was dismissed with costs.

Cases Cited

Northern Cape Provincial Administration v Hambidge NO and Others [1999] 7 BLLR 698 (LC)

SA Chemical Workers Union v Longmile/United (1999) 20 ILJ 244 (CCMA)

Chirwa v Transnet Ltd and Others [2007] ZACC 23; 2008 (4) SA 367 (CC)

Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC)

Legislation Cited

Labour Relations Act 66 of 1995 (sections 186(2)(a), 35, and 213)

Employment of Educators Act, 1998

Constitution of the Republic of South Africa, 1996 (section 33)

Promotion of Administrative Justice Act 3 of 2000 (referred to as “PAJA”)

Rules of Court Cited

Uniform Rules of Court, Rule 6(5)

Uniform Rules of Court, Rule 27(3)

Held

The court held that the educator incentive claimed under clause 8.1(b) of the relevant Government Gazette constituted a benefit rather than remuneration, and that a dispute concerning the alleged failure to provide such a benefit fell within section 186(2)(a) of the Labour Relations Act as an unfair labour practice dispute relating to benefits.

It further held that such disputes must be pursued through the specialised dispute-resolution mechanisms established by the Labour Relations Act and, in the context of the public service, in the appropriate bargaining council forum. The High Court therefore lacked jurisdiction, and the application was dismissed with costs.

LEGAL PRINCIPLES

A claim framed as an entitlement to an employment-related incentive may constitute a dispute about the provision of a benefit, particularly where the incentive operates as a non-pensionable allowance and forms part of the employee’s conditions of service through an incentive arrangement.

Where a dispute falls within the scope of the Labour Relations Act 66 of 1995, including disputes concerning unfair labour practices relating to benefits under section 186(2)(a), it must be resolved through the Act’s specialised fora and procedures, and litigants cannot secure High Court jurisdiction by characterising the dispute as purely contractual or by attempting to reframe it as an administrative-law complaint.

In motion proceedings, affidavits beyond the founding, answering, and replying sets require leave of the court, and non-compliance with the Uniform Rules of Court should be addressed by seeking condonation where appropriate; failing this, such affidavits may be rejected.