About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2012
>>
[2012] ZAKZPHC 35
|
|
Wannenburg v Madamu Techologies (Pty) Ltd (AR87/2012) [2012] ZAKZPHC 35 (13 June 2012)
IN THE
HIGH COURT OF SOUTH AFRICA, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
AR87/2012
In the
matter between:
CAMERON
WANNENBURG
..........................................................
APPELLANT
and
MADAMU
TECHNOLOGIES (PTY) LTD
…...................................
RESPONDENT
JUDGMENT
Date of Hearing: 04 June 2012
Date of Judgment: 13 June 2012
D. PILLAY
J
[1] In this appeal, the applicant employee seeks to set aside the
judgment of the Magistrates’ Court, Pinetown in which that
court ruled that it did not have jurisdiction to determine the
employee’s claim for remuneration. The respondent employer
had
paid the employee at the rate R28,000.00 per month. However, from 1
August 2009 it reduced the employees remuneration to R23,000.00
per
month. The total amount claimed was reduced to R100,000.00 in order
to bring it within the jurisdiction of the Magistrates’
Court.
[2] Relying on
Monyela
& Others v Bryce Jacobs t/a LV Construction (1998) 19 ILJ 75 (LC)
the learned magistrate concluded that the employee
could seek redress in either the High Court or the Labour Court in
terms of section
77(3) of the Basic Conditions of Employment Act, 75
of 1997 (BCEA). Allied to the jurisdictional challenge, the
respondent contended
that as the employee pleaded the cause of action
to be the unilateral variation of the terms and conditions of
employment, the
High Court or Labour Court had jurisdiction in terms
of s 64(4) of the Labour Relations Act, 66 of 1995 (LRA). Relying on
Makhanya v University of Zululand
1
the employer asked the learned magistrate to
determine whether there was good cause of action on the substantive
issues raised in
the employee’s particulars of claim.
[3] In this appeal the employer expands its
criticism of the employee’s pleadings to include a complaint
that the employee
did not allege or plead that the contract was
repudiated, and whether he elected to enforce the agreement by way of
a claim for
specific performance, or to accept the repudiation,
cancel the contract and sue for damages. The employee had to plead
its election
2
,
which the employee failed to do. This latter attack on the pleadings
was not debated in the Magistrates’ Court.
[4] On the morning of the appeal both parties agreed that the Labour
Court had jurisdiction. They consented to the matter being
transferred to that forum. Consequently, the only issue remaining is
the costs of the special plea in the Magistrates’ Court
and
this appeal.
[5] Although the thrust of the challenge at the appeal hearing
whittled down to whether the Magistrates’ Court had
jurisdiction,
the debate in the Magistrates’ Court related to
whether the Labour Court on the one hand, or the Magistrates’
and the
High Courts on the other hand, had jurisdiction. I deal with
the debate in the Magistrates’ Court first.
[6] As at 30 May 2011 when the special plea was heard by the
magistrate the issue of jurisdictional disputes about claims arising
from employment contracts was well settled.
[7] The applicable legislation is the BCEA. Section 77(3) of the BCEA
provides:
‘
The
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment,
irrespective of whether any basic conditions of employment
constitutes a term of their contract.’
[8] The breadth of any matter concerning a
contract of employment’ has been whittled down to exclude
matters which fall within
the exclusive jurisdiction of the Labour
Court.
3
[9] Turning to the case law, in
Old
Mutual Life Assurance Company SA Ltd v Gumbi
4
and
Boxer Superstores
Mthatha and Another v Mbenya
5
which was
delivered
5 days earlier, the Supreme Court of Appeal accepted:
‘
The
jurisdiction in 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
and Others v MEC for Education and Training Eastern Cape and Others
2002
(2) SA 692
(CC)’
‘
Provided
the employees claim as formulated does not purport to be one that
falls within the exclusive jurisdiction of the Labour
Court, a 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 and Others
(2006) ILJ 157 SCA
para
4-5)
‘
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
)’
6
[10] Although the SCA found in
SAMSA
v McKenzie
7
that it was not dealing with a jurisdictional
challenge but rather a challenge to the validity of the pleaded
claim, it nevertheless
clarified what claims are justiciable under
the LRA. In discussing
Gumbi
and
Boxer
in
which the employees relied on the common law and contract, the Wallis
AJA observed
‘
. . .
the question whether the High Court has jurisdiction to consider a
claim for breach of contract is not controversial.’
[11] The employer could have been in no doubt that the employees
claim related to his contract of employment. In fact, the employer
elected to describe the nature of the dispute as a unilateral
variation of the terms and conditions of employment. It then
attempted
to persuade the learned magistrate that such a cause of
action fell squarely within the ambit of section 64(4) or the unfair
labour
practice provisions in section 186(2)(a) of the LRA.
[12] Quite obviously by 2011 it was well established that section
64(4) relates to remedying unilateral action by an employer by
enabling employees to strike. A strike is by its nature a collective
action. An individual employee withholding his labour is not
an
effective remedy for a unilateral change in conditions of his or her
employment. As regards section 186(2)(a), the employee’s
claim
is for remuneration not benefits for which this section on unfair
labour practices provides. Hence, his claim does not fall
within the
unfair labour practice jurisdiction of the Labour Court.
[13] In making these submissions the employer misplaced reliance on
Monyela
. That case was decided in November 1997 before the
BCEA came into operation on 1 December 1998. Furthermore, in that
case the unilateral
change affected several workers; accordingly the
Labour Court acknowledged the right of those workers to invoke the
right to strike.
The learned judge’s remark about the
jurisdiction of the High Court was made in passing.
[14] Another option available to some employees is compliance orders
in terms of section 69 of the BCEA. However, s 6(1)(a) and
(3) of the
BCEA excludes the application of certain portions of the BCEA to
particular employees. Thus a labour inspector may not
issue a
compliance order against an employer in respect of senior managerial
employees and those earning in excess of an amount
determined by the
Minister. It was common cause that the employee in this case fell
beyond the scope of the remedies offered by
a compliance order.
[15] In short, for this employee neither the LRA nor the BCEA
provided remedies that fell within the exclusive jurisdiction of
the
Labour Court.
[16] In applying the precedent set in
Fedlife
and
Makhanya
it
was confirmed that the High Court and the Labour Court both have the
power to enforce common law contractual and constitutional
rights in
so far as their infringement arises from employment
8
.
[17] At the hearing of this appeal, the particular focus of the
employer’s challenge is to the jurisdiction of the Magistrates’
Court. It alleges that in terms of section 46(2)(c) of the
Magistrates’ Court Act, 32 of 1944, a Magistrates’ Court
has no jurisdiction in matters in which a claimant seeks specific
performance without an alternative of payment for damages. I
disagree.
[18] Jones & Buckle
The
Civil Practice of the Magistrates’ Court in South Africa
10
th
Ed Vol 1, summarises the conflicting opinions on
the interpretation of the term ‘specific performance’.
The narrow view
is that the Magistrates’ Courts have no
jurisdiction to entertain a claim for specific performance of a
contractual obligation
in the absence of a claim for damages.
9
The modern approach is that orders sounding in
money, regardless of the cause of action, are not, for the purposes
of the section,
orders of specific performance.
10
The modern approach is preferable because,
practically, a claim for specific performance by payment of a sum of
money will eventuate
in a writ of execution or similar debt recovery
procedures, not contempt of court and consequent imprisonment, which
was the principal
motivation for distinguishing claims for specific
performance from claims sounding in money.
11
[19] What is in issue in this appeal is whether the Magistrates’
Court had jurisdiction to enforce a claim arising from contract.
The
fact that the employee did not specify whether he accepted the
repudiation and claimed damages or whether he rejected the
repudiation and sought to enforce his claim, is immaterial in the
circumstances of this case. The employer was in no doubt that
the
claim was for unilateral variation of the employee’s terms and
conditions of service. If it was material, the employer
could have
inferred that the employee sought specific performance because the
employee was in employment at the time he instituted
proceedings. Any
doubt the employer had about the employee’s claim could have
been clarified in either an exception to the
particulars of claim or
by a request for further particulars. Deficiencies in the pleading
therefore did not impact on the Magistrates’
Courts having
jurisdiction.
[20] Ms Allen for the employee submitted from the bar that the
employee’s reasons for applying to the Magistrates’
Court
instead of the Labour Court were that he would bear costs on a lower
scale and might get a date for hearing sooner than in
the Labour
Court. If this is correct, they are not the only considerations.
[21] Litigants should be reminded that the Labour
Court should be preferred for labour disputes firstly because it is a
specialist
court designed for disputes in employment. Section 158
confers wide powers on the Labour Court which includes the power to
review
any decision of an employer,
12
to deal with all matters necessary or incidental
to performing its functions in terms of the LRA or any other law,
13
to refer a dispute to arbitration
14
and to reserve any question of law for decision by
the Labour Appeal Court.
15
The LRA requires judges of the Labour Court to
have ‘have knowledge, experience and expertise in labour law’
16
.
Most of all, in the Labour Court there is no risk of jurisdictional
challenges in employment disputes.
[22] In the circumstances, I grant an order in the following terms by
agreement :
Part A
By consent the appellant employee’s claim under case number
1594/2010 in the Pinetown Magistrates’ Court is remitted
to
the Labour Court for adjudication;
The appellant employee’s particulars of claim are to stand as
the Statement of Claim;
The respondent employer’s plea on the merits is to stand as
the Statement of Response;
The parties are directed to hold a Pre-Trial Conference and to file
a minute thereof by no later than 2 July 2012 in the Labour
Court.
Part B
The respondent employer shall pay the costs of the special plea in
the Magistrates’ Court and the costs of this appeal
in the
Labour Court.
__________
D. PILLAY J
_________
MBATHA J I agree.
Counsel for Appellant: Ms Allen
Instructed by Stirling Attorneys, Glenwood
c/oTate, Nolan & Knight Inc
65 Hesketh Drive, Hayfields
Counsel for the Respondent: Mr Broster
Instructed by Hulley & Associates Inc, La Lucia Ridge
1
2010
(1) SA 62
(SCA)
2
Amler’s
Precedents of pleadings page 34;
Datacolour
International (Pty) Ltd v The Intamarket
(Pty)
Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA)
3
Boxer
para 5(ii) E;
McKenzie
para 35
4
2007
(5) SA 552 (SCA) [2007] ALL SA (866)
5
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA)
6
Fedlife
Assurance Ltd v Wolfaardt
2002 (1) SA
49
(SCA) (2001) 22 ILJ 2407
7
2010
(3) SA 601
(SCA)
8
Para
18.
9
Carpet
Contracts (Pty) Ltd v Grobler
1975 (2)
SA 436
(T) at 442 C-D
10
Packers
Land and Development Corporation (EDMS) Bpk v Van Zyl
1977 (3) SA 1041
(T) at 1045 D
11
Jones
& Buckle, section 46 citing
Bohm v
Steyn’s Garage Ltd
1930 TPD 1
at
5
12
158
(1) (h)
13
158
(1) (j)
14
158
(2)
15
158
(4)
16
153
(6)(b)