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[2016] ZAGPPHC 487
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Government Employees Medical Scheme and Another v Nkonyane (13121/2015) [2016] ZAGPPHC 487 (22 June 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number:
13121/2015
Date: 22/6/2016
Not reportable
Not of interest to
other judges
Revised.
In the matter between:
THE GOVERNMENT
EMPLOYEES MEDICAL
SCHEME FIRST
APPLICANT/DEFENDANT
LIZIWE
KONYANE SECOND
APPLICANT/DEFENDANT
And
PETRONELLA NONLELA
NKONYANE RESPONDENT/PLAINTIFF
JUDGMENT
PRETORIUS
J,
(1)
This is an application in
which the respondents have raised three special pleas,
inter
alia
, that this court
lacks jurisdiction, the matter has prescribed and the matter has been
finalised.
(2)
The parties agreed at a
pre-trial meeting on 10 September 2015 that the defendants’
special pleas should be adjudicated first,
as a finding in the
defendants’ favour will dispose of the plaintiff’s claim.
BACKGROUND:
(3)
According to the plaintiff
she was employed by the first defendant until her resignation on 23
February 2012. She alleges
that she was emotionally and
verbally abused by the second defendant. As a result of his
action she was forced to resign.
She is claiming damages for
past and future losses for “
loss
of her job”
.
She further claims for post-traumatic stress and depression in the
amount of R500 000. This is as a result of
being forced to
resign due to the emotional and verbal abuse of the second defendant.
SPECIAL PLEA:
JURISDICTION:
(4)
The
plaintiff’s claim is that she was constructively dismissed as
she was forced to resign due to the defendants’ actions.
In this instance the court has to determine whether the plaintiff was
in fact constructively dismissed. The result of this
is that
the
Labour
Relations Act
[1]
,
as amended, applies as a claim for constructive dismissal has to be
referred to the CCMA or relevant bargaining council.
Should she
not have been successful, the matter should have been arbitrated in
the absence of a successful conciliation.
(5)
In
Gcaba
v Minister of Safety and Security and Others
[2]
the court held:
“
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa, and not the substantive merits of the case.
If Mr Gcaba's
case were heard by the High Court, he would have failed for not being
able to make out a case for the relief he sought,
namely review of an
administrative decision.
In
the event of the court's jurisdiction being challenged at the outset
(in limine), the applicant's pleadings are the determining
factor
.
They contain the legal basis of the claim under which the applicant
has chosen 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
.”
(Court emphasis)
(6)
In
terms of this decision the plaintiff’s pleading is the
determining factor to decide whether this court has jurisdiction
in
this action. If the court finds that the plaintiff’s
claim is set out in terms which constitute a claim under the
Labour
Relations Act
[3]
,
then the Labour Court has exclusive jurisdiction and this court
cannot hear the matter.
(7)
In
Chirwa
v Transnet Limited and Others
[4]
the Constitutional Court held:
“
It
is my view that the existence of a purpose-built employment framework
in the form of the LRA and associated legislation infers
that labour
processes and forums should take precedence over non-purpose-built
processes and forums in situations involving employment-related
matters. At the least, litigation in terms of the LRA should be
seen as the more appropriate route to pursue.
Where
an alternative cause of action can be sustained in matters arising
out of an employment relationship, in which the employee
alleges
unfair dismissal or an unfair labour practice by the employer, it is
in the first instance through the mechanisms established
by the LRA
that the employee should pursue her or his claims
.”
(Court emphasis)
(8)
In
this instance it is clear that the provisions of the
Labour
Relations Act
[5]
apply if the court takes into consideration the plaintiff’s
cause of action, which is constructive dismissal. This
court
thus lacks jurisdiction if the court applies the principles set out
in the above decisions. Should I be wrong in this
finding I
deal with the other special pleas as well.
SPECIAL PLEA:
PRESCRIPTION:
(9)
In
terms of section 10 of the
Prescription
Act
[6]
,
a debt shall be extinguished by prescription after the lapse of a
period of three years, as stipulated in section 11 of the Act.
Section 12 stipulates that prescription shall commence to run as soon
as the debt is due. Section 17(2) provides that the court
may hear
the defence of prescription at any stage. In this matter it was
raised in the plea.
(10)
In
terms of section 190 of the
Labour
Relations Act
[7]
the date of dismissal is the earlier of:
“
(a) the date on
which the contract of employment terminated; or
(b)
the date on
which the employee left the service of the employer
.”
(Court emphasis)
(11)
According to the plaintiff
she was emotionally and verbally abused by the second respondent on
15 August 2009. Her claim against
the defendants arose on 15
August 2009. She resigned from her employment on 12 January
2012 in a letter which,
inter
alia
set out, “
My
last day will be on 23 February 2012, six weeks from today”
.
(12)
Her notice of resignation
was accepted, confirming that her notice period would terminate on 23
February 2012. Her last working
day was 13 January 2012 and her
final date of service would have been 23 February 2012. Her
e-mail in this regard on 13 January
2012 reads:
“
I
want to bid farewell to you all and inform you that I am leaving my
position at GEMS.
Today
is my last day at work
.
I have enjoyed working for this company and I appreciate having had
this wonderful opportunity to work with you all.
During these
last few years you all have provided me with kindness, encouragement
and support, which is so unforgettable.
With many of you, I
have shared a unique friendship which I hope will continue in the
years to come even though I shall not be
here with the company.
I now look forward to new challenges and adds (sic) more diverse
experience to my future.”
(Court emphasis)
(13)
It is clear from both the
e-mails by the applicant and the employee of the applicant, Dr Watson
that her last day attending at her
place of employment was 13 January
2012.
(14)
The applicant served her
notice on 12 January 2012 to terminate her employment. The
respondent accepted the shorter notice
period and set out in a letter
dated 13 January 2012:
“
CONFIRMATION OF
TERMINATION
Further
to the discussion held yesterday between yourself and Zandile Sebona,
your last working day will be 13 January 2012
and your final date of
service will be 23 February 2012. Your January salary will be
paid as normal and your final payout
will be made on 23 February
2012.”
(Court
emphasis)
(15)
Therefor
the applicant’s employment was terminated on 13 January 2012,
the day she left her employment. This principle was
confirmed in the
matter of
Chabeli
v Commissioner for Conciliation, Mediation and Arbitration and
Others
[8]
:
“
On
these facts the applicant’s initial calculation was in terms of
the provisions of section 190 (b) of the LRA, correct and
remains so,
in my view.
The
contract between him and the respondent was terminated on the day he
left his employment and not as he contended when he received
the pay
slip
.”
(Court emphasis)
(16)
The date that the claim
would have become prescribed was therefore 13 January 2015 and not 23
February 2015 as counsel for the applicant
submitted. I find
that she left her employment on 13 January 2012 as set out in her
e-mail to her colleagues and according
to the letter by Dr Watson, on
behalf of the employer.
(17)
This special plea of
prescription must therefore succeed. Her claim had thus
prescribed on 13 January 2015, as summons was
only issued on 20
February 2015.
SPECIAL PLEA:
RES JUDICATA
:
(18)
During February 2012 the
plaintiff referred a claim against the first defendant to the CCMA on
the grounds of constructive dismissal.
This claim was withdrawn
by the plaintiff on 18 May 2012.
(19)
The present action was
instituted on 20 February 2015. It is quite clear that the
present claim is essentially the same claim
against the same party
for the same relief, even if it was launched almost three years after
the original claim to the CCMA.
(20)
The plaintiff recorded in
her notice of withdrawal of the claim to the CCMA: “
I
confirm that I signed this notice of withdrawal of my own free will
and that I understand the contents and the implications thereof”
.
There can be no doubt that she did understand that she could not
pursue the same claim against the same parties for the
same relief,
albeit in the High Court.
(21)
In
Nestlè
(Pty) Ltd v Mars
[9]
the Supreme Court of Appeal held:
“
[16]
The defence of lis alibi pendens shares features in common with the
defence of res judicata because they have a common underlying
principle,
which
is that there should be finality in litigation. Once a suit has been
commenced before a tribunal that is competent to adjudicate
upon it,
the suit must generally be brought to its conclusion before that
tribunal and should not be replicated (lis alibi pendens)
.
By the same token the suit will not be permitted to be revived once
it has been brought to its proper conclusion (res judicata).
The
same suit, between the same parties, should be brought only once and
finally
.”
(Court emphasis)
The particulars of claim
set out that the respondent was constructively dismissed and she
bases her claim on constructive dismissal.
Counsel for the
respondent argued that the present claim is for breach of contract.
I cannot agree with this submission if
I have regard to the
particulars of claim where it is set out:
“
As a result of
the aforesaid the Plaintiff was forced to resign from her job.”
(22)
Therefor I find that the
claim by the applicant is
res
judicata
as she had
already withdrawn the claim in 2012.
(23)
Although the defendants
request the court to grant costs on an attorney and own client scale,
I cannot find that the facts in the
present matter justify such an
order.
(24)
The special pleas in
respect of jurisdiction, prescription, and res judicata are upheld.
(25)
In the result the
following order is made:
1.
The plaintiff’s
claim is dismissed with costs.
_____________________
Judge C Pretorius
Case
number :
13121/2015
Matter heard
on :
23 May 2016
For the
Applicants :
Adv WP Bekker
Instructed
by :
Gildenhuys Malatji Inc
For the
Respondent :
Modzuka and Magolego Inc
Instructed
by :
Adv TM Mphahlele
Date of
Judgment :
22 June 2016
[1]
Act 66 of 1995
[2]
2010(1) SA 238 CC at paragraph 74
[3]
Supra
[4]
[2008] 2 BLLR 97
(CC) at paragraph 41
[5]
Supra
[6]
Act 68 of 1969
[7]
Supra
[8]
(JR2241/08)
[2009] ZALC 126
at paragraph 13
[9]
2001(4) 542 SCA at paragraph 16