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[2013] ZAFSHC 176
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Morabane v Letsemeng Local Municipality (5224/2011) [2013] ZAFSHC 176 (17 October 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRCIA
Case No: 5224/2011
In the matter between:
VUYO MOKSEKI
MOROBANE
........................................................
Plaintiff
and
LETSEMENG LOCAL
MUNICIPALITY
.......................................
Defendant
JUDGMENT BY:
REINDERS, AJ
HEARD ON
:
15 OCTOBER 2013
DELIVERED ON
:
17 OCTOBER 2013
[1] On 17 October 2013 I
made the following order:
1. Both special pleas
raised by the defendant are dismissed with costs.
2. The action is
postponed
sine die
for disposal of the remaining issues.
3. Reasons for the order
will be furnished to any of the parties in terms of Rule 49(1)(c) on
application.
[2] In terms thereof
defendant requested the reasons for the order.
[3] These are those
reasons:
[4] At the onset of the
proceedings this court made a ruling in terms of Rule 33(4) that
issues be separated and that the two special
pleas raised by
defendant firstly be adjudicated upon as agreed by the parties during
the pre-trial conference in terms of Rule
37.
[5] The first special
plea raised by defendant was one of non-compliance with the
provisions of section 3(2)(a) of the Institution
of Legal Proceedings
Against Certain Organs of State Act 40 of 2002 (“the Act”).
In the terms of section 3(2)(a) a
notice of the intention to
institute legal action must be given to an organ of state within six
months from the date on which the
cause of action arose.
[6] Mr Motlaung on behalf
of defendant argued that plaintiff resigned in writing on 11 February
2010, which letter was followed
up by letters from the defendant on
respectively 30 April 2010, 7 May 2010 and 14 May 2010. The next step
taken by plaintiff was
on 29 April 2011 being the notice in terms of
section 3(2)(a). The said letter was thus issued almost a year after
plaintiff’s
resignation, and plaintiff should have applied for
condonation for the late notice.
[7] Mr Pienaar on behalf
of plaintiff submitted that plaintiff based his claim on breach of a
fixed term contract and elected to
sue defendant for specific
performance in terms of the agreement. Defendant pleaded to
plaintiff’s particulars of claim.
On 20 September 2013
plaintiff amended his particulars by adding an alternative claim for
damages. Defendant did not plea to the
amended particulars.
[8] It was further
submitted by Mr Pienaar that plaintiff tendered his conditional
resignation on 11 February 2010, whereafter defendant
did not accept
plaintiff’s resignation on the said conditions, but instead
unconditionally terminated the contract with effect
from 30 April
2010. The said termination by defendant constituted repudiation,
which repudiation plaintiff refused to accept. Plaintiff
tendered to
work for defendant since 30 April 2010, but defendant failed to pay
the monthly instalments of plaintiff’s remuneration
for the
period 1 May 2010 to 31 August 2011.
[9] In his replication Mr
Motlaung argued that plaintiff was unable to claim for specific
performance as defendant made it very
clear that his (plaintiff’s)
services were no longer required. The plaintiff had a reciprocal
obligation to render his services,
and since this was an employment
relationship, plaintiff was not entitled to remuneration if he did
not work.
[10] I cannot agree with
Mr Motlaung. The plaintiff seeks an order that defendant pays money
which he undertook to pay in terms
of a contract.
[11] In Christie’s
The Law of Contract in South Africa
(7
th
Edition on p 544) specific performance is defined as:
“ …
an
order to perform a specific act or to pay money (
ad
pecuniamsolvendam
)
in pursuance of a contractual obligation.”
[12] It is trite law that
a plaintiff is always entitled to claim specific performance and,
assuming he makes out a case, his claim
will be granted subject to
the court’s discretion (see
Farmers’ Co-op Society
(Reg) v Berry
1912 AD 343
;
Tamarillo (Pty) Ltd v BN
Aitken (Pty) Ltd
1982 (1) SA 398
(A).)
[13] In
BK Tooling
(Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1)
SA 391
(A) it was decided that, when a defendant from whom
performance is claimed says that the plaintiff is not entitled to
claim because
the parties’ obligations are reciprocal and he
(plaintiff) has neither performed nor tendered to perform his
obligations,
the defendant should raise the
exceptio non
adempleticontractus
.
[14] Defendant did not
raise this defence.
[15] Whether plaintiff is
obliged to notify the defendant of his intention to institute legal
proceedings, depends on the question
if plaintiff’s claim
constitutes a “debt” as defined in section 1 of the Act.
[16] After thorough
consideration Lever AJ came to the conclusion in
Nicor
Consulting v North-West Housing Corporation
2010 (3) SA 90
(NWM) at 103C that a “debt” as referred to in the Act, is
confined to damages, and a claim for specific performance
therefore
does not constitute a debt as contemplated in the Act. It was
confirmed in
Director General, Department of Public Works v
Kovacs Investments 289 (Pty) Ltd
2010 (6) SA 646
(GNP) at
648G that a plaintiff does not have to comply with the provisions of
the Act in an action for specific performance.
[17] I am satisfied that
plaintiff’s main claim against defendant is a claim for
specific performance and accordingly plaintiff
did not have to comply
with section 3(2) of the Act.
[18] It follows that
defendant’s first special plea cannot succeed.
[19] The second special
plea raised by defendant entailed
res iudicata
and
jurisdiction.
[20] Mr Motlaung
submitted that the parties consented in terms of clause 19.3 of the
employment contract to the jurisdiction of
the Commission for
Conciliation, Mediation and Arbitration (“the CCMA”), and
if the CCMA was unable to adjudicate the
dispute, the Courts of the
Republic of South-Africa. Plaintiff referred the matter to the CCMA,
and on 29 March 2011 it was finally
adjudicated in favour of the
defendant.
[21] Thus Mr Motlaung
concluded that the CCMA was able to adjudicate the matter and no
further referral to the High Court was possible.
[22] Mr Motlaung also
argued that the High Court was in any event the wrong forum for
plaintiff to institute his action. He relied
heavily on
Chirwa
v Transnet Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) at 380 D-E for
his submission that, since the Labour Relations Act 65 of 1995 (LRA)
had created a specialised framework for
the resolution of labour
disputes, it was primarily through the mechanisms of the LRA that an
employee had to pursue his or her
claims.
[23] Mr Motlaung insisted
that the action instituted by plaintiff is purely a labour matter
which is camouflaged in common law breach
of contract and that the
High Court lacked jurisdiction to entertain the labour matter.
[24] Mr Pienaar submitted
that the claim brought by plaintiff in the CCMA was one of unfair
dismissal as is evident from the discovered
CCMA ruling of 29 March
2011. Moreover, the merits were never considered as this was an
application for condonation of referral
outside the statutory
prescribed time frame, a fact to which Mr Motlaung conceded.
[25] He argued that it is
trite law that there is a potential for three separate claims to
arise when an employee’s contract
is terminated, namely for the
infringement of his or her:
1. right not to be
unfairly dismissed or be subjected to unfair labour practices;
2. common law rights; and
3. constitutional rights.
[26] I agree with Mr
Pienaar.
[27] In
Makhanya v
University of Zululand
2010 (1) SA 62
SCA at 67 paras [11]
–[13], Nugent JA referred to the rights created by the LRA as
“LRA rights”, and indicated
that the CCMA and Labour
Court have exclusive jurisdiction to enforce these rights. The
learned judge stated at 71 para [26] as
follows:
“
But,
in respect of the enforcement of both contractual and constitutional
rights the High Courts retain their original jurisdiction
assigned to
them by the constitution. In both cases equivalent jurisdiction has
been conferred upon the Labour Court to be exercised
concurrently
with the High Courts.”
[28] It was also stressed
that, where a claim that was pursued before the CCMA was a claim to
enforce the right of an employee not
to be dismissed unfairly, a
plaintiff will still have a claim for enforcement of a right
emanating from the common law to exact
performance of a contract (at
77 – 78 paras [56] – [63]).
[29] The court considered
the
Chirwa
-decision
and concluded that in that instance the case was essentially not
about jurisdiction, but rather whether there was a good
cause of
action.
[30] I am accordingly
satisfied that plaintiff’s claim can be entertained by this
court.
[31] Mr Pienaar pointed
out in his Heads of Argument that the Constitutional Court ruled in
Gcaba v Minister for Safety and Security
and Others
2010 (1) SA 238
(CC) at 263 D
– G para [57] that jurisdiction is determined on the basis of
the pleadings and not the substantive merits
of the case.
[32] In terms of the
pleadings plaintiff’s action is for specific performance,
alternatively damages, both of which the High
Court has the power of
competence to hear and determine the issues.
[33] As far as defendant
raised a special plea that the matter had already been adjudicated by
the CCMA, it is clear that the claim
before the CCMA (unfair
dismissal) and the claim before this court (specific performance) is
not the same. In such an instance
a defence of
res
iudicata
cannot succeed (see
Makhanya
v Minister of Safety and Security and Others
supra
at 85 paras [96] – [100].
[34] The defendant’s
second special plea of jurisdiction and
res
iudicata
accordingly suffers the same fate as
the first special plea and cannot succeed.
[35] As far as costs is
concerned, it is trite that costs normally follow the result. I can
see no reason to deviate therefrom
in casu.
[36] Accordingly I made
the said order.
_______________
C. REINDERS, AJ
On behalf of
theplaintiff: Adv. C. D. Pienaar
Instructed by:
BezuidenhoutsInc
BLOEMFONTEIN
On behalf of
thedefendant: Mr D. C. Motlaung
Instructed by:
Motaung Attorneys
BLOEMFONTEIN
/ebeket