Nehawu obo Adekayo v Central University of Technology: Free State and Another ((2009) 30 ILJ 1261 (O)) [2008] ZAFSHC 157; [2008] ZAFSHC 36 (19 June 2008)

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[2008] ZAFSHC 157
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Nehawu obo Adekayo v Central University of Technology: Free State and Another ((2009) 30 ILJ 1261 (O)) [2008] ZAFSHC 157; [2008] ZAFSHC 36 (19 June 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. : A1671/08
In
the matter between:-
NEHAWU
obo A ADELAJA ADEKOYA
Applicant
and
CENTRAL
UNIVERSITY OF TECHNOLOGY:
First
Respondent
FREE STATE
THANDWA
MTHEMBU
Second
Respondent
THE
VICE-CHANCELLOR:
CENTRAL
UNIVERSITY OF
TECHNOLOGY:
FREE STATE
_____________________________________________________
HEARD
ON:
12
JUNE 2008
_____________________________________________________
JUDGMENT
BY:
HANCKE,
J
_____________________________________________________
DELIVERED
ON:
19
JUNE 2008
_____________________________________________________
[1] The
applicant, the National Education Health and Allied Workers Union,
applies for an order on behalf of Mr. Ayodele Adelaja Adekoya
in the
following terms:
“
1. That
the 1
st
Respondent be ordered to reinstate Ayodele Adelaja Adekoya to his
post as a lecturer with immediate effect and with full benefits.
2. That
the 1
st
Respondent be ordered to pay damages including emoluments to Ayodele
Adelaja Adekoya.
3. That
the 1
st
Respondent pay the costs of the application.”
[2] Respondents resist
the application on the following grounds:
2.1. The
applicant lacks
locus
standi
to act on behalf of Mr. Adekoya in these proceedings.
2.2 The High Court does
not have jurisdiction to entertain these proceedings.
2.3 Even if the High
Court had the necessary jurisdiction to entertain the proceedings,
the cause of action framed by the applicant,
is essentially one of an
unfair dismissal which would resort under dispute resolution
procedures in terms of the Labour Relations
Act, 66 of 1995 (as
amended).
2.4 A claim for damages
by way of motion procedure is not permissible in law.
[3] As
far as
locus
standi
is concerned, Mr. Motloung, counsel for the applicant, submitted that
it has jurisdiction to institute the present proceedings in
view of
the wording of
section 200(1)
of the
Labour Relations Act, which
reads as follows:
“
200 Representation
of employees or employers
(1) A registered
trade union or registered employers' organisation may act in any one
or more of the following capacities in any dispute
to which any of
its members is a party-
(a) in its own interest;
(b) on
behalf of any of its members;
(c) in the interest of any of its
members.”
[3] The
cases on which Mr. Motloung relied for his submission that the
applicant has
locus
standi
exclusively deal with dispute resolutions in the Labour Court.
MZEKU
& OTHERS v VOLKSWAGEN SA (PTY) LTD & OTHERS
[2001] BLLR 857
(LAC);
NUM
v HERNIE EXPLORATION (PTY) LTD
[2003] 4 319 (LAC) at 331H – 332C. As will be seen infra (par. [5]
– [7]) different statutory provisions are applicable in the
Labour
Court.
[4] It is also necessary
to have regard to
section 161
of the
Labour Relations Act which
deals
with representation before the Labour Court and which reads as
follows:
“161 Representation
before Labour Court
In any proceedings
before the Labour Court, a party to the proceedings may appear in
person or be represented only by-
(a) a legal
practitioner;
(b) a
director or employee of the party;
(c) any member,
office-bearer or official of that party's registered trade union or
registered employers' organisation;
(d) a designated
agent or official of a council; or
(e) an
official of the Department of Labour.”
[5] In
view of the wording of
section 161
the applicant in the present
matter would be entitled to represent Mr. Adekoya in the Labour
Court.
Section 178
of the
Labour Relations Act gives
a trade union
the right to represent its members in the Labour Appeal Court.
However, no such statutory provision exists in respect
of this Court.
To the contrary, it is necessary to have regard to
section 200(2)
which reads as follows:
“
(2) A registered
trade union or a registered employers' organisation is entitled to be
a party to any proceedings in terms of this
Act if one or more of its
members is a party to those proceedings.”
[6] It
is therefore clear that a registered trade union or registered
employers’ organisation is only entitled to be a party to
any Court
proceedings if one or more of its members is a party to those
proceedings. This section does not purport to vest the registered
trade union with the authority to act on behalf of its members in any
proceedings in any Court.
[7] Section
200 clearly distinguishes between
representing
a party during a
dispute
(sub-section (1)) e.g. conducting negotiations on behalf of a party
with an employer or employers’ organisation on the one hand,
and,
on the other hand, being a
party
(sub-section (2)) in Court proceedings. Mr. Adekoya is not a party
to the present proceedings, therefore section 200(2) has no
application.
Section 200(1) does not vest the applicant as a
registered trade union with
locus
standi
to act on behalf of its members in making the present application in
this Court. In view of the applicant’s lack of
locus
standi
the application falls to be dismissed.
[8] However,
the applicant has another stumbling block. In cases where an
employee can make out a cause of action under the
Labour Relations
Act on
the basis of unfair dismissal, and under the common law on the
basis of contractual unlawfulness, (
FEDLIFE
ASSURANCE LTD v WOLFAARDT
2002 (1) SA 49
(SCA);
BOXER
SUPERSTORES MTHATHA AND ANOTHER v MBENYA
2007 (5) SA 450
(SCA)) the courts have in the past allowed the
employee to approach the High Court instead of the Labour Court.
[9] The
abovementioned judgments must, however, now be considered in a new
light in view of the majority decision of the Constitutional
Court in
CHIRWA
v TRANSNET LIMITED & OTHERS:
Case No. CCT 78/06
[2007] ZACC 23
handed down on 28 November 2007,
where Skweyiya J stated the following:
“[40] Although
one should be loathe depriving a litigant of existing rights where
she or he is accorded more than one right by the
Constitution or any
other enabling legislation,
it
is unsatisfactory that the High Court should be approached to decide
review applications in terms of PAJA where the LRA already
regulates
the same issue to be reviewed
......
[41] 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
.”
(My
underlining.)
[10] It
appears from the application that the applicant in his letter of
demand placed the first respondent on terms and gave notice
of his
intention to approach the Labour Court on an urgent basis. It is
also important to note that apart from the fact that he
claims
re-instatement he also claims it with full benefits and damages,
including emoluments as envisaged in the Labour Relations
Act. It is
therefore clear that his cause of action as set out is essentially a
labour dispute which resorts under the dispute resolution
mechanisms
of the
Labour Relations Act.
[11
] There
are also policy considerations why the High Court should not hear
matters which are essentially labour disputes.
Although
differing from the reasoning of the majority judgment in
CHIRWA
,
supra
,
Langa CJ, stated the following under the heading “Policy Concerns”:
“[171] The
judgments of Skweyiya and Ngcobo JJ raise a number of important
policy considerations that, in their view, point in favour
of a
finding that the Labour Court must enjoy exclusive jurisdiction.
These can briefly be described as follows:
(i) Specialised
tribunals should address specialised issues;
(ii) There
is no reason to afford public employees greater protection than
private employees;
(iii) We should
not permit litigants to forum shop; and
(iv) There is a danger of legal
incoherence, uncertainty or possible unfairness to individual
litigants flowing from allowing two
different sets of courts to
decide substantially the same sets of facts on different legal
grounds (LRA – unfair dismissal; PAJA
– procedural unfairness).”
[12] From
the above citations in the
CHIRWA
-judgment
it is clear that Mr. Adekoya’s case belongs in the Labour Court,
and should not be dealt with in the High Court. Apart
from that,
however, it is clear that Mr. Adekoya is not properly before this
Court. He is not a party to these proceedings, and
the applicant
trade union has no power to represent him in this Court. The
applicant has chosen the incorrect forum. The application
also
stands to be dismissed on the basis of lack of jurisdiction.
[13] In the result the
application is dismissed with costs.
________________
S.P.B. HANCKE, J
On
behalf of applicant : Adv. S.E. Motloung
Instructed
by:
Qwelane
Theron & Van Niekerk
BLOEMFONTEIN
On
behalf of respondent : Adv. N. Snellenburg
Instructed
by:
Kramer
Weihmann & Joubert
BLOEMFONTEIN
/sp