About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 79
|
|
Boxer Superstores Mthatha v Mbenya (97/2006) [2007] ZASCA 79; [2007] 8 BLLR 693 (SCA); 2007 (5) SA 450 (SCA); (2007) 28 ILJ 2209 (SCA) (31 May 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case : 97/2006
REPORTABLE
In the appeal between:
BOXER SUPERSTORES MTHATHA
...............................
First appellant
CHAIRMAN OF DISCIPLINARY HEARING,
...............................
Second appellant
BOXER SUPERSTORES
and
NOMAHLUBI LORRAINE MBENYA
...............................
Respondent
Before: Cameron JA, van Heerden JA, Jafta JA, Hancke AJA, Theron AJA
Heard: Tuesday 22 May 2007
Judgment: Thursday 31 May 2007
Jurisdiction – high court – termination of employment
– employee claiming relief because ‘unlawful’
–
not falling within exclusive jurisdiction of labour courts –
high court has jurisdiction – jurisdictional challenge
dismissed
Neutral citation: Boxer Superstores Mthatha v Mbenya [2007] SCA 79
(RSA)
JUDGMENT
_______________________________________________________
CAMERON JA:
This is an appeal from a decision of Peko ADJP in the High Court at
Mthatha, dismissing an objection to the court’s jurisdiction.
The dispute arose on 7 December 2004, when the first appellant (the
employer)
1
terminated the employment of the respondent, Ms Mbenya (the
employee). Seven months later – well outside the time limits
for challenging an unfair dismissal under the Labour Relations Act
66 of 1995 (‘the LRA’) – the employee applied
to
the high court for (a) an order that the disciplinary hearing
preceding her dismissal ‘be set aside’ and its outcome
be declared ‘unlawful’ and be set aside; (b) a
declarator that her dismissal was ‘unlawful’ and of ‘no
force’; (c) re-instatement to her former position ‘with
all salaries and benefits to which she was entitled up to the
date
of her purported dismissal’ (alternatively an equivalent
position ‘with all the benefits as if nothing has happened
to
her’); (d) back-pay; (e) costs.
The employer in response raised a point of law in terms of Uniform
Rule 6(5)(d)(iii),
2
contending that the high court –
‘
lacks jurisdiction to
entertain the application for the relief as sought in the Notice of
Motion in that the provisions [of] the
Labour Relations Act 66 of
1995
dictate that the High Court does not retain jurisdiction to
adjudicate on a dispute of the nature alleged by the applicant.’
In her founding affidavit the employee asserted that her dismissal
was substantively unfair (there being no grounds for it), as
well as
procedurally unfair (in that at the disciplinary hearing, where she
appeared with a shop steward representing her, she
was not asked to
plead guilty or not guilty, and was put on her defence, and
cross-examined, without any evidence being proffered
against her).
For these reasons, she claimed, her dismissal was ‘unlawful’.
She added that ‘my rights have been
violated’ by the
respondents, submitting that ‘everyone is equal before the law
and has the right to equal protection
of the law’,
3
and noting that ‘everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair
public hearing before court’,
4
and that she had been advised that the high court has jurisdiction
to hear the matter.
The employer’s objection to the application challenges its
viability in the forum the employee has chosen. As yet there is
no
answering affidavit, and we must at this stage take the allegations
in the founding affidavit to be established facts,
5
determining whether, if they are true, the high court has
jurisdiction. In this task, the employee was unrepresented before
us,
and we invoked the assistance of the Free State Society of
Advocates, from whose ranks Mr Venter appeared as amicus curiae. We
are grateful to him for his able assistance.
The exclusive jurisdiction of the labour court has been carefully
circumscribed in recent years.
Section 157(1)
of the LRA provides
that subject to the Constitution and to the Labour Appeal Court’s
jurisdiction, and except where the
LRA itself 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’. Despite the
seeming breadth of this provision,
it is now well established that –
(i) (as Peko ADJP observed in dismissing the jurisdictional
objection) section 157 does not purport to confer exclusive
jurisdiction
on the labour court generally in relation to matters
concerning the relationship between employer and employee (
Fedlife
Assurance Ltd v Wolfaardt
)
,
6
and since the LRA affords the labour court no general jurisdiction in
employment matters, the jurisdiction of the high court is not
ousted
by s 157(1) simply because a dispute is one that falls within the
overall sphere of employment relations (
Fredericks v MEC for
Education and Training, Eastern Cape
);
7
(ii) the LRA’s remedies against conduct that may constitute an
unfair labour practice are not exhaustive of the remedies that
might
be available to employees in the course of the employment
relationship – particular conduct may not only constitute an
unfair labour practice (against which the LRA gives a specific
remedy), but may give rise to other rights of action: provided the
employee’s claim as formulated does not purport to be one that
falls within the exclusive jurisdiction of the labour court,
the high
court has jurisdiction even if the claim could also have been
formulated as an unfair labour practice (
United
National Public Servants Association of SA v Digomo NO
)
;
8
(iii) an employee may therefore sue in the high court for a dismissal
that constitutes a breach of contract giving rise to a claim
for
damages (as in
Fedlife
);
(iv) similarly, an employee may sue in the high court for damages for
a dismissal in breach of the employer’s own disciplinary
code
which forms part of the contract of employment between the parties
(
Denel (Edms) Bpk v Vorster
).
9
In these cases, the exclusive jurisdiction of the labour court does
not preclude the employee’s recourse to the high court.
This
case pushes the boundary a little further. The novel question it
raises is whether an employee may sue in the high court for
relief
on the basis that the disciplinary proceedings and the dismissal
were ‘unlawful’, without alleging any loss
apart from
salary. In my view, the answer can only be Yes. This Court has
recently held that the common law contract of employment
has been
developed in accordance with the Constitution to include the right
to a pre-dismissal hearing (
Old Mutual Life
Assurance Co SA Ltd v Gumbi
)
.
10
This means that every employee now has a common law contractual
claim – not merely a statutory unfair labour practice right
–
to a pre-dismissal hearing. Contractual claims are cognisable in the
high court. The fact that they may also be cognisable
in the labour
court through that court’s unfair labour practice jurisdiction
does not detract from the high court’s
jurisdiction.
The sole issue in
Gumbi
, as in this case, was a challenge to
a dismissal arising from a complaint about the fairness of
pre-dismissal disciplinary proceedings.
Although the employer there
abandoned its initial jurisdictional challenge to the high court’s
competence to hear the case,
11
the high court and indeed this Court would have been obliged to
raise the lack of jurisdiction had the matter fallen within the
labour court’s exclusive statutory competence. In my view, by
adjudicating the employee’s claim, the courts in
Gumbi
implicitly decided the question at issue in this case.
It would moreover be illogical to hold that an employee can claim
damages for breach of the common law contract of employment in
the
high court – as in
Fedlife
and
Denel
– but
cannot claim (as is inter alia here sought) a declarator.
And indeed the employee here was careful to formulate her claim on
the basis that her dismissal was ‘unlawful’. She
did not
complain about its unfairness; nor did she invoke the benefits the
LRA confers on employees through the protection of the
labour
court’s unfair labour practice jurisdiction. It is true that
the relief she claimed went far beyond a declarator,
including
reinstatement with back-pay. In
Transnet Ltd v Chirwa
,
12
I observed that the employee’s insistence on approaching the
ordinary courts – when the LRA afforded ample remedies,
including retrospective reinstatement and compensation if the
employer failed to discharge the burden of proving that the
dismissal
was both procedurally and substantively fair – could
involve a penalty regarding relief. The ordinary courts should be
careful
in employment-related matters not to usurp the labour
courts’ remedial powers, and their special skills and
expertise.
13
That means that even if the employee’s factual allegations
prove true, she may well not ultimately be entitled to the relief
she seeks, particularly since according to her founding papers she
had an internal right to appeal, which she failed to exercise.
At
best she may be entitled (subject to the unexhausted appeal process)
to have the hearing set aside, and the matter remitted
to the
employer. That however is not at present the pivotal issue, since
the employer’s objection involved a challenge to
whether the
high court had jurisdiction to entertain the application at all, or
to afford the employee any portion of the relief
she sought.
In argument, counsel for the employer conceded that the LRA does not
confer jurisdiction on the labour courts over unfair dismissals
without more, since these are first subject to compulsory
conciliation and arbitration. He nevertheless contended that though
the employee professed to base her case on the lawfulness of her
dismissal, in substance her complaint was about its fairness –
over which the labour courts ultimately have exclusive jurisdiction.
Accordingly, he argued, the employee was in truth invoking
the
unfair labour practice and the labour court’s remedial
jurisdiction, which in terms of s 191 of the LRA fall squarely
within the labour court’s exclusive competence.
14
This Court should, he urged, therefore give effect to the substance,
rather than the form, of the employee’s case.
This characterisation may be correct, so far as it goes, but it
leaves out of account the fact that jurisdictional limitations
often
involve questions of form, and that the employee in this case, as
already mentioned, formulated her claim carefully to exclude
any
recourse to fairness, relying solely on contractual unlawfulness. In
Fedlife
, Nugent AJA pointed out:
‘
Whether
a particular dispute falls within the terms of s 191 depends on what
is in dispute, and the fact that an unlawful dismissal
might also be
unfair (at least as a matter of ordinary language) is irrelevant to
that enquiry. A dispute falls within the terms
of the section only if
the “fairness” of the dismissal is the subject of the
employee’s complaint. Where it is
not, and the subject of the
dispute is the lawfulness of the dismissal, then the fact that it
might also be, and probably is, unfair,
is quite coincidental for
that is not what the employee’s complaint is about.’
15
That applies here. The appeal must in my view fail and the
jurisdiction of the high court must be upheld. Although the employee
was unrepresented before us, her attorney was still on record. Since
that may have entailed costs, the appeal must be dismissed
with
costs.
E CAMERON
JUDGE OF APPEAL
CONCUR:
van Heerden JA
Jafta JA
Hancke AJA
Theron AJA
1
The
second appellant is the chairman of the disciplinary inquiry that
determined the dismissal.
2
Supreme
Court Act 59 of 1959, Uniform
Rule of Court
(6)(5)(d) ‘Any person opposing the grant of an order sought in
the notice of motion shall – … (iii)
if he intends to
raise any question of law only […] deliver notice of his
intention to do so, within the time stated in
the preceding
subparagraph [ie, within fifteen days of notifying the applicant of
his intention to oppose the application], setting
forth such
question.’
3
Echoing
s 9(1) of the Bill of Rights.
4
Echoing
s 34 of the Bill of Rights.
5
LTC
Harms
Civil
Procedure in the Supreme Court
(1990,
with updates to April 2007) para B6.35, p B-52.
6
2002
(1) SA 49
(SCA) para 25, per Nugent AJA for the majority.
7
[2001] ZACC 6
;
2002
(2) SA 693
(CC) para 40, per O’Regan J for the Court
(endorsing
Fedlife
at para 38).
8
(2005)
26
ILJ
1957
(SCA) paras 4-5, per Nugent JA for the Court.
9
2004
(4) SA 481
(SCA) paras 15-16.
10
[2007]
SCA 52 (RSA) paras 5-8, per Jafta JA for the Court.
11
See
Old Mutual v Gumbi
para
1.
12
2007
(2) SA 198
(SCA) paras 46-47 and 66-67 (Mpati DP concurring).
13
Because
the other judges (Mthiyane JA, with whom Jafta JA concurred, and
Conradie JA) concluded that the appeal should be allowed,
thereby
refusing the employee relief altogether, it was not necessary for
them to consider this point.
14
LRA
s 191(1) governs disputes ‘about the fairness of a dismissal,
or a dispute about an unfair labour practice’.
15
2002
(1) SA 49
(SCA) para 27.