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[2015] ZANCHC 37
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Davids-Paulse v MEC: Department of Education : NC and Others (825/15) [2015] ZANCHC 37 (4 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Case
No: 825/15
Heard:
27/10/2015
Delivered:
04/12/2015
In
the matter between:
J A C
DAVIDS-PAULSE
Applicant
v
MEC: DEPARTMENT OF
EDUCATION: NC
1
st
Respondent
THE HOD: DEPT OF
EDUCATION: NC
2
nd
Respondent
THE DEPUTY DIRECTOR:
DEPT OF
EDUCATION
3
rd
Respondent
THE DISTRICT
DIRECTOR: DEPT OF
EDUCATION - Z F
MQCAWU DISTRICT:
UPINGTON
4
th
Respondent
THE DISTRICT
DIRECTOR: DEPT OF
EDUCATION - JOHN
TAOLO GAETSEWE
DISTRICT: KURUMAN
5
th
Respondent
THE CFO:
DEPARTMENT OF EDUCATION
NORTHERN
CAPE PROVINCE
6
th
Respondent
Coram:
Kgomo JP
et
Pakati J
JUDGMENT
KGOMO
JP
[1]
The
applicant, Ms Davids-Paulse, is in the employ of the Department of
Education and currently based in Upington, Northern Cape.
She
was previously an educator and rose to the position of school
principal in Kuruman, Northern Cape. She now seeks the
following relief:
1.1
That
the decision taken by anyone of the following respondents during
March 2012 in terms of which an amount of R108 432-00
was
deducted from her salary be reviewed and set aside: The MEC of
Education; the HOD of Education, the Deputy Directors
of Education
(Upington and Kuruman) and the CFO of Education (the 1
st
to 6
th
respondents, respectively).
1.2
That
a mandamus be issued ordering the said respondents to refund Ms
Davids-Paulse the stated deducted amount; and
1.3
That
the respondents bear the costs of this application jointly and
severally, the one paying the others to be absolved
pro
tanto
.
[2]
The
respondents have raised two points
in
limine
:
2.1
First, that this Court lacks the required jurisdiction to adjudicate
upon this application as the Labour Court
has been vested, in terms
of s 157(1) of the Labour Relations Act, 66 of 1995 (the LRA), with
exclusive jurisdiction;
2.2
Secondly, that, in any event, Ms Davids-Paulse has not exhausted all
her internal remedies before approaching
this Court for the mooted
relief and must be non-suited.
THE
JURISDICTIONAL CHALLENGE
[3]
Section
157(1) and (2) of the
LRA
makes the following stipulation:
“
157.
Jurisdiction of Labour Court
(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
from labour relations;
(b) any dispute over
the constitutionality of any executive or administrative act or
conduct, or 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.”
[4]
Section
186(2) is pivotal to this enquiry, it provides:
“
186.
Meaning of unfair labour practice
(2)
“Unfair labour practice” means any unfair act or omission
that arises between an employer and an employee involving
–
(a) unfair conduct
by the employer relating to the promotion, demotion, probation
(excluding disputes about dismissals for a reason
relating to
probation) or training of an employee or
relating to the
provision of benefits to an employee;
(b) unfair
suspension of an employee or any other unfair disciplinary action
short of dismissal in respect of an employee;
(c) a failure or
refusal by an employer to reinstate or re-employ a former employee in
terms of any agreement; and
(d)
an occupational detriment, other than dismissal, in contravention of
the Protected Disclosures Act, 2000 (Act No. 26 of 2000)”
[5]
In
Gcaba
v Minister of Safety and Security
2010 (1) SA 238
(CC), Van Der Westhuizen J remarked on jurisdiction:
“
Jurisdiction
under s 157(1) and (2)
[70] Section 157(1)
confirms that the Labour Court has exclusive jurisdiction over any
matter that the LRA prescribes should be
determined by it. That
includes, amongst other things, reviews of the decisions of the CCMA
under s 145. Section 157(1) should,
therefore, be given expansive
content to protect the special status of the Labour Court, and s
157(2) should not be read to permit
the High Court to have
jurisdiction over these matters as well.
[71] Section 157(2)
confirms that the Labour Court has concurrent jurisdiction with the
High Court in relation to alleged or threatened
violations of
fundamental rights entrenched in Ch 2 of the Constitution and arising
from employment and labour relations, any dispute
over the
constitutionality of any executive or administrative act or conduct
by the State in its capacity as employer and the application
of any
law for the administration of which the minister is responsible.
The purpose of this provision is to extend the jurisdiction
of the
Labour Court to disputes concerning the alleged violation of any
right entrenched in the Bill of Rights which arise from
employment
and labour relations, rather than to restrict or extend the
jurisdiction of the High Court. In doing so, s 157(2) has
brought
employment and labour-relations disputes that arise from the
violation of any right in the Bill of Rights within the reach
of the
Labour Court. This power of the Labour Court is essential to its role
as a specialist court that is charged with the responsibility
to
develop a coherent and evolving employment and labour relations
jurisprudence. Section 157(2) enhances the ability of the Labour
Court to perform such a role.
[72]
Therefore, s 157(2) should not be understood to extend the
jurisdiction of the High Court to determine issues which (as
contemplated
by s 157(1)) have been expressly conferred upon the
Labour Court by the LRA. Rather, it should be interpreted to mean
that the
Labour Court will be able to determine constitutional issues
which arise before it, in the specific jurisdictional areas which
have been created for it by the LRA, and which are covered by s
157(2)(a), (b) and (c).
[73] Furthermore,
the LRA does not intend to destroy causes of action or remedies and s
157 should not be interpreted to do so.
Where a remedy lies in the
High Court, s 157(2) cannot be read to mean that it no longer lies
there and should not be read to mean
as much. Where the judgment of
Ngcobo J in Chirwa speaks of a court for labour and employment
disputes, it refers to labour- and
employment-related disputes for
which the LRA creates specific remedies. It does not mean that all
other remedies which might lie
in other courts, like the High Court
and Equality Court, can no longer be adjudicated by those courts. If
only the Labour Court
could deal with disputes arising out of all
employment relations, remedies would be wiped out, because the Labour
Court (being
a creature of statute with only selected remedies and
powers) does not have the power to deal with the common-law or other
statutory
remedies.
[74] The specific
term 'jurisdiction', which has resulted in some controversy, has been
defined as the 'power or competence of a
Court to hear and determine
an issue between parties'. This court regularly has to decide
whether it has jurisdiction over
a matter, because it may decide only
constitutional matters and issues connected with decisions on
constitutional matters.
If a litigant raises a constitutional
issue, this court has jurisdiction, even though the issue may
eventually be decided against
the litigant.
[75] 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. An applicant like Mr Gcaba, who is
unable to plead facts that sustain a cause of administrative action
that is cognisable by the High Court, should thus approach the Labour
Court.
Conclusion
[76]
In view of the above the application for leave to appeal must
succeed, but the appeal must fail. The order of the High Court
was
correct. The applicant's complaint was essentially rooted in the LRA,
as it was based on conduct of an employer towards an
employee which
may have violated the right to fair labour practices. It was not
based on administrative action. His complaint should
have been
adjudicated by the Labour Court.”
[6]
The
question of the infringement of a constitutional right in this matter
we are seized with does not arise, nor was it raised or
pleaded,
neither does the question of a contractual obligation arise and it
was also not raised. If therefore, on the facts
of this case,
which I will examine shortly, it is found that we lack jurisdiction
Makhanya
v University of Zululand
2010 (1) SA 62
(SCA) at p 83B-D (para 83) prescribes that:
“
[83]
The High Court, once having found that it had no jurisdiction, as the
majority found, would not have been capable, by its own
decision, of
making any further orders in the matter. The only course open to it
would have been to dismiss the claim, on the ground
that it lacked
the power to make any further orders.”
[7]
Demonstrably,
the applicant and her legal representatives saw the preliminary
challenges coming and anticipated them comprehensively
in the
following manner in the Founding Affidavit (paras 52-61):
“
52.
I am advised that the issue of whether this application should serve
before this Honourable Court or whether same
should have been
referred to the Labour Court instead might become an issue and
I therefore deem it necessary to shortly
address this aspect, before
dealing with the remainder of the issues at hand.
Full legal argument
pertaining to the above will be submitted on date of the hearing of
this application, should it be deemed necessary
by the Honourable
Court.
53.
I am advised that the
Labour Relations Act, Act
66 of 1995
(hereinafter the LRA) defines an unfair labour practice inter alia as
any unfair act or omission that arises between
an employer and an
employee involving unfair conduct by the employer relating to the
provision of benefits to an employee.
54.
I am advised that the Labour Court has held that the reach of the
term “benefits” as mentioned
above, stops short of
remuneration as defined in the LRA.
55.
Although no specific authorities on whether deductions of over-paid
salary fall within the reach of the term
“benefits”, it
has been found that disputes concerning overtime pay do not
constitute benefits for purposes of the
definition of an unfair
labour practice and I respectfully submit that my matter should be
found to be analogous to the above.
56.
Authorities on the subject of unfair labour practices do suggest
that, in order to succeed in an action based
on an alleged unfair
labour practice, employees must prove that the conduct or practice
complained of, fall within the terms of
one of the forms expressly
listed in the definition of an unfair labour practice as set out in
the LRA.
57.
In view of all of the above, I therefore respectfully submit that the
decision by the Respondents to make
deductions from my salary and the
resultant deductions thus made, does not fall within the definition
of an unfair labour practice
and should therefore be deemed to be an
administrative decision and action.
58.
In view of the above, I respectfully submit that the above Honourable
Court does have jurisdiction to
hear this application.
59.
I submit that, in terms of
section 7
of PAJA, this application had to
be instituted within 180 days after I became aware of the reasons for
the decision to deduct the
money from my salary, provided that I have
first exhausted all of my internal remedies.
60.
I submit that I have exhausted all of my internal remedies on 30
October 2014, upon receipt of the letter
by the PSC to which I have
referred therein above.
61.
In view of the above I submit that this application was brought
within the time limits set by PAJA.”
THE
HISTORICAL BACKGROUND TO THIS MATTER
[8]
Strictly
speaking, more pertinently anchored on the
Makhanya-judgment
(above), should we find that we lack jurisdiction to adjudicate on
this dispute the necessity of ruling on the second objection
taken,
viz that the application serves prematurely before us because all the
internal processes have not been followed or all the
internal
remedies have not been exhausted, would fall out. This must be
so because the substratum would have fallen away.
Put
differently, our order would lack authority or it would be a
brutum
fulmen
.
[9]
The
applicant claims to have taken sick leave for the period 25 July 2011
to 26 September 2011 (two months); and thereafter from
27 September
2011 to 31 December 2011, another two months. She was, on this
evidence, absent from work, rightly or wrongly,
for an uninterrupted
period of four months.
[10]
The
applicant states in her founding affidavit that “
due
to the fact that the abovementioned periods of sick-leave exceeded
the periods of sick-leave which I would have been entitled
to under
normal circumstances, I was expected to apply for temporary
additional sick leave in terms of the Policy and Procedure
on
“Incapacity Leave and ILL-Health Retirement” (hereinafter
referred to as PILIR) and more specifically in terms of
clause 7.1.2
of PILIR.”
[11]
The
applicant goes on to state that in Kuruman, where she was a principal
of a school, she was treated by Dr H Scheepers on seven
occasions
(specific dates supplied) between 01 June 2011 to 09 January 2012.
She maintains that on each consultation she
furnished the PILIR forms
to the doctor to complete “
but
he unfortunately neglected
”
to do so. Appended to the applicant’s papers, marked
“
JAC1
”,
is what she terms “
a
copy of pages 18-30 of the PILIR form which pertains to me and which
was completed by Dr Scheepers.”
[12]
“
JAC1
”
is pro-forma. At p18 thereof is reflected “
CONFIDENTIAL
”
and “
Part C:
Statement by Attending doctor” and
importantly, for present purposes, in brackets: “The
employee is responsible
to obtain this statement from the doctor.”
The form purports to have been completed and signed by Dr Scheepers
on 18 November 2012. “JAC1” reflects all seven
consultation dates the applicant alluded to, the last being 09
January 2012.
[13]
The
applicant is aggrieved by the fact that on 12 March 2012, when she
was already stationed in Upington, she “
received
a visit from two officials of the Department, Mr Gordon and Mr Demas,
who requested me, apparently upon instruction of
2
nd
Respondent [the HOD of the Department] to submit the relevant PILIR
forms within 2 (two) working days.”
[14]
On
the same date (12/03/2012) the two emissaries delivered this letter,
“JAC2”, dated 09 March 2012 to the applicant
the receipt
whereof she signed for:
“
Re:
Non submission of PILIR Applications Forms
Purpose
To
highlight the PILIR submission procedure and consequences of
non-compliance thereof.
Discussion
Despite
multiple attempts to persuade you into submission of your PILIR
application forms the PILIR office still has not received
your
application forms.
Application
forms are the following temporary incapacity leave periods:
·
28
July 2011 – 26 September 2011 (45 days).
·
27
September 2011 – 31 December 2011 (45 days).
·
Total
90 days.
Decision
We
draw your attention into
Section 9.1.11
and
9.1.12
of our PILIR
Procedural Manual and
section 7.1.8
and
7.1.9
of our PILIR Policy.
These
sections stipulate that, upon receipt of this document, you will have
2 working days to provide the requested documents or
valid reasons
for not doing so. Failing that, the PILIR office shall be left
with no option but to institute unpaid leave
for 90 days as per
above.
Yours
Faithfully:
V
Phetlho: Deputy Director: COS
.”
[15]
The
applicant avers that she queried the two-day deadline and was told
and assured by Mr Gordon that her default to comply with
the PILIR
policy and prescripts will be condoned if cogent reasons are
furnished. She has appended “JAC3” dated
16 March
2012, “JAC4” dated 27 March 2012 and “JAC5”
dated 28 March 2012 which purport to be handwritten
letters and
reminders to Dr Scheepers to complete the PILIR forms and hand them
to one Titus and/or John. “JAC6”
purports to be
transmission confirmations of such communications to her doctor.
The applicant maintains that she copied “JAC3”
to
“JAC6” to the Department and also communicated
telephonically with certain of its officials. The Departments
disputes this. There is no need to resolve this dispute because
its resolution will not contribute any essence to the outcome
of this
judgment.
[16]
The
complainant feels betrayed that notwithstanding all the assurances
given to her and the representations that she made she was
contacted
telephonically by a Mr Burger of the Department at the end of March
2012 who informed her that a decision has been taken
to deduct
R108 432.00 from her salary in 12 monthly instalments. In
reaction she wrote to none other the HOD of the
Department (2
nd
Respondent) on 02 April 2012 in “JAC7” that (my
translation):
“
LEAVE
WITHOUT SALARY (PAY): MS JAC DAVIDS-PAULSE: 5179--- [last
digits omitted]:
(a)
Leave
without pay on my salary has currently been instituted by the
Department in the amount of R108 432.76.
(b)
I
hereby request that the amount be deducted over a period of 12
months, but if possible over a period of 24 months.
(c)
My
current financial position is such that I cannot afford the envisaged
deduction over a period of 12 months. I am the sole
breadwinner
who has to see to the maintenance of my son and aged parents.
(d)
I
further have to inform you that I have lodged a dispute/grievance
which I am confident will be decided in my favour.
I
[will] appreciate your speedy handling of the matter.”
(Own
emphasis)
[17]
Under
Part B of the “Details of Grievance” form marked “JAC8”
an applicant is asked: What are you
aggrieved about?”
She states: “
Acceptance
of PILIR submission, because Dr completed it,”
and further: “
What
solution do you propose?
”
She answered: “
Install
my salary.”
Under her signature she has supplied only the year “
2012”
but omitted the day and month. However, below the applicant’s
signature is reflected B.I Mathupi’s signature,
whose
designation is “
AD:
Labour Relation”
and
dated 10 April 2012. Accordingly, after she wrote the letter to the
HOD on 02 April 2012.
[18]
On
21 February 2014 Fletcher’s Attorneys, the applicant’s
attorney, wrote a 6-page letter to the Department largely
rehashing
the history of this matter already covered hereinbefore.
However, the following extract points to the gravament
of applicant’s
case:
“
Section
7(2)(a)
of PAJA however precludes our client from approaching a Court
for the determination of her dispute, unless all internal remedies
have been exhausted.
In terms of Schedule
I, Part F, Item 8 of the Rules for Dealing with Grievances of
Employees in the Public Service (herein after
the Rules), a grievance
by an employee must be dealt with within 30 days after it has been
lodged, unless the period of 30 days
has been extended by mutual and
written agreement (which was not done in this instance).
Schedule I, Part F,
Schedule 11 (a) of the Rules determines that in the event of a
failure by the Department to respond to the grievance
within the
above-mentioned period of 30 days, the grievance may be forwarded to
the Public Service Commission directly.
We have advised our
client, despite the fact that her grievance has not been attended to
by the Department, she will have to refer
the matter to the Public
Service Commission first, before proceeding to Court.
Our
client’s dispute with the Department is therefore herewith
referred to your offices for your kind attention.”
[19]
JAC13
is a letter written by the Director General of the Public Service
Commission (the PSC) dated 29 October 2014 to Fletcher’s
Attorneys warning or advising them that the applicant had not,
amongst other things exhausted her internal remedies. JAC13
reads in part:
“
According
to the said Notice of Motion, the applicant intends to approach the
Labour Court for an order against the 1
st
Respondent, Regional Director: Public Service Commission:
Northern Cape, for failing to finalise the investigation
into her
grievance relating to the alleged unlawful deductions from her salary
by the Department of Education.
In terms of section
3(2) of the Employment Educators Act, 1998, the Minister of Education
determines the salaries and other conditions
of service of educators.
·
A
grievance procedure for educators is provided for in Chapter H of the
Personnel Administration Measures (PAM) determined by the
Minister of
Education in terms of the
Employment of Educators Act, 1998
.
·
The
grievance procedure for educators indicates that-
“
The
objective of this grievance procedure is to seek to resolve a
complaint at the personal level as quickly and as close to the
source
of the complaint as possible. It is aimed at avoiding a
grievance becoming a dispute. In the case where a grievance
cannot be resolved through this process and is consequently
registered as a dispute in terms of the provisions of the
constitution
of the Educators Labour Relations Council, such
registered dispute shall be dealt with in terms of the dispute
resolution procedure
as set out in the said constitution.”
In
terms of the above grievance procedure, educators must lodge their
grievances departmentally, and should the Department be unable
to
resolve their grievance, they should lodge a dispute with the ELRC.
In view of the prescribed procedures for Educators,
Ms Davids-Paulse
should have exhausted the internal procedures as provided for in the
PAM and the dispute resolution mechanism
in terms of the provisions
of the Constitution of the ELRC. Her matter was thus not
properly before the Public Services Commission
and could not be dealt
with.”
The
applicant was therefore properly forewarned.
THE
LEGAL SUBMISSIONS
[20]
Counsel
on both sides have referred us to numerous cases in respect of which
the question whether “salaries” or “wages”
constitute “
remuneration”
and “
benefits”
or not within the contemplation of
s 186(2)(a)
of the
Labour
Relations Act. None of them
referred to
Apollo
Tyres South Africa (Pty) Ltd v Commission for Conciliation,
Medication and Arbitration and Others
[2013] 5 BLLR 434
(LAC) Cagney Musi AJA (JM Hlophe and Patel JJA
concurring), which we brought to their attention. We afforded
them to file
supplementary heads having heard them, which they did.
[21]
Ms
A Stanton, counsel for the respondents, urged us to follow not only
the Apollo Tyres decision but
South
African Airways (Pty) Ltd v GJJV
[2014]
8 BLLR (LAC) which followed the Apollo Tyres judgment. Mr AD
Olivier, for the applicant, has now shifted ground and
submits that,
however that may be, the High Court retains jurisdiction by virtue of
being clothed with concurrent jurisdiction
with the Labour Court and
in addition there is a constitutional dimension or element to the
applicant’s matter which right
has been infringed by the
Department.
[22]
In
the
Apollo
judgment at paras 25, 26 and 28 the LAC held:
“
[25]
The distinction that the Courts sought to draw between salaries or
wages as remuneration and benefits is not laudable but artificial
and
unsustainable. The definition of remuneration in the Act is wide
enough to include wages, salaries and most, if not all extras
or
benefits. Remuneration is defined as:-
‘
Remuneration
means any payment in money or in kind made or owing to any person in
return for that person working for any other person,
including the
State, and remunerate has a corresponding meaning.
[26]
Many benefits that are payment in kind form part of the essentialia
of practically all contemporary employment contracts. Many
extras are
given to employees as a quid pro quo for services rendered just as
much as a wage is given as a quid pro quo for services
rendered. The
cost to employer package has become, for many employees and
employers, a standard contract of employment. PAK Le
Roux points out
that extras are often important issues during the negotiation of
contracts of employment and the link between salaries
or wages and
benefits or extras is illustrated by the fact that contributions to
medical aid schemes and pensions and provident
schemes are often
agreed to on the basis of a ‘salary sacrifice’ because
this is a tax effective way of structuring
an employment package.
[28]
In Protekon (Pty) Ltd v CCMA and Others, it was correctly, in my
view, stated that the concern that a wide definition of ‘benefit’
might curtail the right to strike needs not persist. According to the
learned Judge, one must look at the nature of the benefit
dispute in
order to decide whether it is a dispute that must be settled by way
of industrial action or adjudication. ---.”
[23]
At
paras 48 – 50 the LAC then decided:
“
[48]
The facts of this matter clearly illustrate that the Hospersa
approach, that the benefit must be an entitlement that is rooted
in
contract or legislation, is untenable. Hoosen had, in terms of her
employment contract, a right to retirement benefits. The
contract did
not make provision for a right to voluntary early retirement
benefits. She would therefore, on the Hospersa approach,
be able to
challenge, by way of arbitration, any unfairness relating to the
ordinary retirement benefits. When the appellant decided
to
accelerate the existing contractual benefits and retained a
discretion to grant the accelerated benefits, the benefits would
strangely morph into something less than benefits because according
to the Hospersa approach she does not have a contractual right
to the
accelerated retirement benefits. The employer would then have a
license to act with impunity. She would thus not have recourse
in the
civil courts, because no contract came into being, nor would she have
a remedy in terms of section 186 (2) (a) of the Act
to challenge the
patent unfairness because there is no underlying contractual right to
the benefits. Being a single employee she
would in accordance with
Schoeman v Samsung not have the right to strike. Clearly the notion
that the benefit must be based on
an ex contractu or ex lege
entitlement would, in a case like this, render the unfair labour
practice jurisdiction sterile.
[49]
In South Africa Post Office Ltd v CCMA and Others, the Labour Court
found the reasoning in IMATU persuasive but considered
itself bound
by the authority of the Labour Appeal Court with reference to
Hospersa, Scheepers and G4S Security Services.
[50]
In IMATU obo Venter v Umhlathuze Municipality, the Labour Court
followed the Protekon approach. It then concluded that:
‘
The
more plausible interpretation is that the term “benefits”
was intended to refer to advantages conferred on employees
which did
not originate from contractual or statutory entitlements, but which
have been granted at the employer’s discretion.’
It
seems to me that the court in IMATU was concerned that if benefits
include a statutory or contractual right or entitlement, the
right to
strike may be curtailed. As pointed out above employees will have an
election to strike or go the arbitration/adjudication
route in
respect of many rights disputes. In my view, the better approach
would be to interpret the term benefit to include a right
or
entitlement to which the employee is entitled (ex contractu or ex
lege including rights judicially created) as well as an advantage
or
privilege which has been offered or granted to an employee in terms
of a policy or practice subject to the employer’s
discretion.
In my judgment “benefit” in section 186 (2)(a) of the Act
means existing advantages or privileges to which
an employee is
entitled as a right or granted in terms of a policy or practice
subject to the employer’s discretion. In as
far as Hospersa,
G4S Security and Scheepers postulate a different approach they are,
with respect, wrong.”
[24]
In
South
African Airways (Pty) Ltd v GJJV
(supra) the LAC, approved the Apollo decision. What the decisions in
Apollo
Tyres
and
the
SAA
v GJJV
cases convey to employees who find themselves in similar
circumstances as the applicant in
casu
is that they would stand on solid ground if they go the Labour Court
route. Mr Olivier, belatedly argued in his supplementary heads
that
the matter does not end there and agitated that we assume
jurisdiction by virtue of the the constitutional issue purportedly
raised. Counsel relies on
Gcaba
v Minister of Safety and Security
(supra)
2010 (1) SA 238
(CC) at pp 248-254. I have already dealt with
this aspect.
[25]
To
avoid forum shopping legal practitioners and litigants would do well
to look at the following provisions of the
Basic
Conditions of Employment Act
75, of 1997
.
25.1
Section 34(5)(a)
and (b) provides that:
“
34.
Deductions
and other acts concerning remuneration.
(5)
An employer may not require or permit an employee to –
(a)
repay any remuneration except for overpayments previously made by the
employer resulting from an error in
calculating the employee’s
remuneration; or
(b)
acknowledge receipt of an amount greater than the remuneration
actually received.”
25.2
On Jurisdiction of the Labour Court
s 77(1)
provides
:
“
(1)
Subject to the Constitution and the jurisdiction of the Labour Appeal
Court, and except where this Act provides
otherwise, the Labour Court
has exclusive jurisdiction in respect of all matter in terms of this
Act.”
25.3
On Powers of the Labour Court s 77A(d) stipulates
:
“
(d)
reviewing the performance or purported performance of any function
provided for in terms of this Act or any act
or omission by any
person or body in terms of this Act, on any grounds permissible in
law.”
[26]
I
am, in the circumstances, satisfied that the application must fail.
The costs will have to follow the result. I therefore
make the
following order.
ORDER
The point
in
limine
is upheld on the jurisdictional challenge. The
application is dismissed with costs.
_______________________
F DIALE
KGOMO
JUDGE
PRESIDENT
Northern
Cape Division, Kimberley
I concur
_______________________
B M
PAKATI
JUDGE
High Court of South
Africa
Northern
Cape Division, Kimberley
On behalf of
the Applicants
:
Adv
D.A Olivier
(Fletcher’s
Attorneys)
On behalf of
the Respondent:
Adv A. Stanton
(Office of the
State Attorney)