THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS434/22
In the matter between:
DR LESIBA SAMUEL T MAPHOSO Applicant
and
SOUTH AFRICAN BROADCASTING CORPORATION
(SABC) First Respondent
SELLO ISAAC MASHILA Second Respondent
Heard: 26 October 2023
Delivered: 05 February 2024
JUDGMENT
ADAMS, AJ
Introduction
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[1] The Applicant has referred a dispute to this Court on the basis of an unfair
labour practice.
[2] The First Respondent (Respondent) subsequently filed a special plea to the
statement of case on the basis that this Court lacks jurisdiction to determine
this dispute.
[3] The Respondent, in raising the special plea, has contended, inter alia ,
effectively that:
3.1 the Applicant seeks an order that the Respondent’s conduct and the
conditions attached to the offer of 25 May 2021 constitute an unfair
labour practice;
3.2 Section 191(1)(a) of the Labour Relations Act1 (LRA) provides that:
‘If there is a dispute about the fairness of a dismissal, or a dispute about an
unfair labour practice, the dismissed employee or the employee alleging the
unfair labour practice may refer the dispute in writing to –
(i) a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii) the Commission, if no council has jurisdiction…’
3.3 in the circumstances, the Labour Court lacks the requisite jurisdiction to
determine this dispute. Such a dispute must be referred to a bargaining
council or the CCMA in line with section 191(1)(a) of the LRA.
[4] In response to the special plea raised, the Applicant, through the delivery of a
replication has contended that:
4.1 The matter was referred to the CCMA on 20 June 2022;
1 Act 66 of 1995, as amended.
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4.2 This Honourable Court has jurisdiction to entertain this matter
notwithstanding the fact that the dispute in question falls within the ambit
of the CCMA;
4.3 The leading case that speaks to this issue is Ncaphayi v Commission for
Conciliation, Mediation and Arbitration and others 2 (Ncaphayi), which
states that as long as the merits or the facts of the case have not already
been decided by the commissioner, the applicant will always have the
right to re-refer the very same case against the employer;
4.4 In terms of the Ncaphayi case, the Respondent is to prove the following
for the matter not to proceed before the Honourable Court:
4.4.1 That such a case will be prejudicial to the Respondent, that
witnesses have resigned, evidence is lost, and it is costly for the
Respondent to be appearing for a case in which the Applicant has
already shown that he is not interested in;
4.5 in the present case, none of the factors above-mentioned are applicable
and as such, the Respondent’s special plea stands to fail and the matter
is to proceed on its merits in terms of the statement of claim and the
evidence of witnesses if any.
Background
[5] The Applicant referred a dispute to this Court on the basis of an unfair labour
practice on 20 June 2022.
[6] The Applicant has contended, in his statement of claim, that the conduct of the
Respondent constituted an unfair labour practice in terms of section 186(2)(b)
of the LRA.
[7] In terms of the relief sought, the Applicant has claimed the following:
2 (2011) 32 ILJ 402 (LC).
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7.1 The conditions attached to the offer constitute unfair labour practice in
terms of section 193;
7.2 The conditions attached to the offer should be declared invalid and set
aside;
7.3 The Applicant must be appointed to the post of Senior Producer:
Mandate;
7.4 Alternatively, compensation or any appropriate relief is to be paid to the
Applicant.
[8] It is not in dispute that:
8.1 The Applicant’s dispute involves that of an unfair labour practice;
8.2 The Applicant has referred a dispute to the CCMA on 20 June 2022
(being the same day that he prosecuted his proceedings in this Court).
Legal principles applicable
[9] Section 191(1)(a) of the LRA provides that:
‘If there is a dispute about the fairness of a dismissal, or a dispute about an
unfair labour practice, the dismissed employee or the employee alleging the
unfair labour practice may refer the dispute in writing to –
(i) a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii) the Commission, if no council has jurisdiction…’
[10] Section 191(5)(a) of the LRA provides:
‘(5) If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days or any further period as agreed between the
parties have expired since the council or the Commission received the
referral and the dispute remains unresolved –
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(a) the council or the Commission must arbitrate the dispute at the
request of the employee if –
(i) the employee has alleged that the reason for dismissal
is related to the employee's conduct or capacity, unless
paragraph (b)(iii) applies;
(ii) the employee has alleged that the reason for dismissal
is that the employer made continued employment
intolerable or the employer provided the employee with
substantially less favourable conditions or
circumstances at work after a transfer in terms of section
197 or 197A, unless the employee alleges that the
contract of employment was terminated for a reason
contemplated in section 187;
(iii) the employee does not know the reason for dismissal; or
(iv) the dispute concerns an unfair labour practice…’
[11] Section 191(5)(a) makes it peremptory for a dispute involving an unfair labour
practice to be arbitrated by the council or the Commission after it has certified
that the dispute remains unresolved.
[12] Section 158(2) of the LRA provides that:
‘If at any stage after a dispute has been referred to the Labour Court, it
becomes apparent that the dispute ought to have been referred to arbit ration,
the Court may –
(a) stay the proceedings and refer the dispute to arbitration; or
(b) if it is expedient to do so, continue with the proceedings, in which
case the Court may only make any order that a commissioner
or arbitrator would have been entitled to make: Provided that in
relation to the question of costs, the provisions of section 162
(2) (a) are applicable..’
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[13] This section permits the Labour Court to continue with matters sitting as an
arbitrator with the parties’ consent. The LRA , and in particular section 158(5)
also provides that, except as provided in section 158(2), the Labour Court lacks
jurisdiction to adjudicate an unresolved dispute if the Act requires the dispute
to be resolved through arbitration.
[14] Importantly, it was held in Member of the Executive Council of the Western
Cape Provincial Government Health Department v Coetzee and others3 that:
‘[73] The consent of the parties cannot clothe the Labour Court with
jurisdiction it does not have. The wording of section 158(2) is plain and
unambiguous. It only applies in matters before the Labour Court “ if at
any stage after the dispute has been referred to the Labour Court, it
becomes apparent that the dispute ought to have been referred to
arbitration” (emphasis added).
[74] This was clearly not a case where it only became apparent after the
referral to the Labour Court that the matter had to be referred to
arbitration. This was a known fact before the referral to the Labour
Court. The respondents had started off by refer ring the matter for
conciliation failing which arbitration.
[75] In the circumstances, the Labour Court (Cheadle AJ) could not have
properly exercised the discretion, which is clearly circumscribed in
section 158 (2) “ to continue with the proceedings with the court sitting
as arbitrator”. The court was requested at the outset to sit as arbitrator.
There was no “continuation” of the proceedings in the sense
contemplated in that section, but a request at the outset that
proceedings be conducted with the court sitting as arbitrator.
[76] It is clear from the section that the parties’ consent for the court to sit as
arbitrator had to be strictly within the circumstances prescribed and
contemplated in section 158(2)(b). The section was not intended to give
parties a choice at the outset , to avoid the forums or structures where
3 [2015] 11 BLLR 1108 (LAC) at paras 73 – 77.
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arbitrations are normally to be conducted in terms of the LRA, in favour
of opting for the Labour Court to sit as arbitrator.
[77] It is not the Labour Court’s normal function to sit as arbitrator. Section
158(2)(b) is intended to cover exceptional circumstances where it was
not apparent before the matter that it had to be referred to arbitration.’
[15] This Court agrees with the findings made in this regard. Section 158(2) is not
intended to give parties a choice to avoid the forums and processes normally
conducted by the LRA. It is not the Court’s function to sit as an arbitrator and
section 158(2)(b) is intended to only cater for exceptional circumstances in
order to avoid parties forum shopping. This section can only be used in
instances where it only becomes apparent after the matter was referred to this
Court, that the matter should have been referred for arbitration.
[16] The Applicant’s reliance on Ncaphayi to contend that this Court does have
jurisdiction to adjudicate the dispute as long as the merits or the facts of the
case have not already been decided is also misplaced.
[17] In Ncaphayi, the commissioner had concluded that he could not entertain the
applicant’s unfair dismissal claim unless the notice of withdrawal in respect of
the applicant ’s first referral was not set aside by the court. The facts were
completely distinguishable from the facts in casu with the applicant having
initially referred his matter to the CCMA, withdrawn his matter, and then re -
referred his matter to the CCMA for hearing again. The commissioner had found
that the applicant’s submission of a notice of withdrawal by a referring party
constituted action and that he therefore had no jurisdiction to hear the matter
until such time as the notice of withdrawal had been set aside by this Court.
[18] The Court found in Ncaphayi that the commissioner had misconstrued his
power to conciliate the dispute by concluding that the applicant’s withdrawal of
the dispute needed to be set aside by this Court before he could entertain it.
[19] The Ncaphayi case does not support the Applicant’s argument in these
proceedings, nor can I rely on the findings made therein in making a finding in
this matter.
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[20] I agree with the Respondent’s contentions that the Applicant was aware that
his dispute should be referred to the CCMA prior to launching these
proceedings. The Applicant referred his dispute to the CCMA on the same day
that he prosecuted his claim in this Court and has st ated as much in his
replication. His stance in the matter is simply that either the Labour Court or the
CCMA may adjudicate his claim, and he is free to choose.
[21] This stance, however, is not in line with Section 191(5), 157(5) or 158(2) of the
LRA.
[22] The Applicant’s decision to institute proceedings in both the CCMA, as well as
this Court demonstrates that the Applicant was aware that the matter required
to be referred to arbitration prior to being instituted in this Court and is an
example of forum shopping, for which section 158(2) of the LRA does not allow.
[23] I do not find exceptional circumstances that would warrant the application of
section 158(2) in either staying the proceedings and referring the dispute to
arbitration or continuing with the proceedings in the circumstances.
[24] Accordingly, this Court lacks the necessary jurisdiction to deal with this matter.
[25] In the premises, I make the following order:
Order
1. The Labour Court lacks jurisdiction to adjudicate the Applicant’s unfair
labour practice dispute;
2. The Respondent’s special plea dated 30 June 2022 is upheld;
3. The Applicant’s statement of case is struck off the roll for lack of
jurisdiction;
4. There is no order as to costs.
_______________________
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R Adams
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Angelo Ray Harry Mason
Instructed by: Poto Attorneys
For the Respondent: Lisa Appelgryn
Instructed by: Werksmans Inc.