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2024
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[2024] ZALCJHB 113
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Dipela v Limpopo Economic Development Agency (J1125/21) [2024] ZALCJHB 113; (2024) 45 ILJ 1278 (LC) (15 March 2024)
FLYNOTES:
LABOUR – Costs – De bonis propriis –
Disputes
concerning alleged unfair labour practices to be referred to CCMA
or bargaining council – Apparent to applicant
from outset
that Labour Court did not have jurisdiction – Applicant’s
representative, despite being officer of
court, chose to ignore
obvious difficulties – Conduct amounted to abuse of court
process and was frivolous and vexatious
– Did not address
jurisdictional challenge in heads of argument – Applicant
wasted court’s precious time,
which could have been diverted
elsewhere – Application dismissed for lack of jurisdiction –
Order of costs de
bonis propriis –
Labour Relations Act 66
of 1995
,
s 191(1).
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No. J
1125/21
In
the matter between:
MACHUENE
REUBEN DIPELA
Applicant
and
LIMPOPO
ECONOMIC DEVELOPMENT AGENCY
Respondent
Heard
:
15
February 2024
Delivered
:
This judgment was handed down electronically by emailing a
copy to the parties. 15 March 2024 is deemed to be the date of
delivery of this judgment).
Summary:
Reasons for earlier order in which the court dismissed
the application, for lack of jurisdiction, with applicant to
pay the
costs
de bonis propriis
REASONS FOR ORDER
DANIELS
J
Introduction
[1]
This application was heard on 15 February 2024, when the court handed
down its order, in which it dismissed the application for lack of
jurisdiction and ordered the applicant to pay costs
de bonis
propriis
.
[2]
Subsequently, the applicant requested reasons for the order. These
are
my reasons.
Material
facts
[3]
The applicant was employed by Great North Transport (Pty) Ltd
(hereafter
“GNT”) as an internal audit assistant, grade
10. GNT is a subsidiary of the respondent.
[4]
As a result of its
financial difficulties, or about 1 May 2018, GNT transferred the
applicant on a temporary basis to the respondent,
(hereafter “LEDA”).
The applicant was advised that his terms and conditions of employment
during the period of the
transfer would be unaffected.
[1]
[5]
The applicant launched this application on 6 October 2021, for an
order
directing and compelling LEDA to conduct a job evaluation
exercise and to adjust the applicant’s remuneration upwards
from
grade 10 to grade 7.
[6]
By the time that the application was heard, the applicant was no
longer
engaged by LEDA, nor was he employed by GNT.
Admission
of supplementary affidavit
[7]
After the close of pleadings, without prior leave
of the court, and in the absence of any formal application seeking
leave, the
applicant filed a supplementary affidavit.
[8]
In the supplementary affidavit, the applicant
sought to advance a new cause of action, namely that the respondent
had breached his
employment contract.
[9]
There
was no satisfactory explanation as to why the information in the
supplementary affidavit could not have been included in the
founding
affidavit, or the replying affidavit.
[2]
All indications are that the facts contained in the supplementary
affidavit were available to the applicant at the launch of the
application. I took the view that when the applicant sought to
introduce a new cause of action, the resulting prejudice could not
be
remedied by a cost order.
[3]
[10]
On
full conspectus of all the relevant circumstances, noting the
prejudice to the respondent, noting that the admission of a
supplementary
affidavit is ordinarily done via interlocutory
proceedings,
[4]
noting the
absence of a satisfactory explanation, noting the absence of any
exceptional circumstances,
[5]
the court exercised its discretion against the admission of the
supplementary affidavit.
Jurisdictional
issues
[11]
In its notice of motion and founding papers, the applicant contended
that the conduct of
LEDA constituted an unfair labour practice. It
pinned its colours to the mast.
[12]
The applicant contended that this court has jurisdiction to determine
the alleged unfair
labour practice in consequence of sections 185
read with 186(2)(a) of the Labour Relations Act 66 of 1995 (hereafter
“the
LRA”) and section 23 of the Constitution of the
Republic of South Africa.
[13]
The respondent in its answering affidavit raised the jurisdictional
issue and contended
that the court had no jurisdiction to hear the
dispute on the following grounds:
13.1
This court has no jurisdiction, as a court of first instance, in
relation to unfair labour practices because such
disputes must be
referred to the Commission for Conciliation, Mediation and
Arbitration (the “CCMA”) for conciliation
and (if
conciliation fails to resolve the dispute) to arbitration, in terms
of section 191(1) read with section 191(5)(a)(iv) of
the LRA.
13.2
This court may not exercise its powers without the dispute first
being conciliated, in accordance with section
157(4) of the LRA,
13.3
The respondent is not the applicant’s employer as at the date
when the application was brought,
13.4
The applicant has failed to comply with the period (90 days),
contemplated in section 191(1)(b) of the LRA, to
refer an unfair
labour practice dispute.
[14]
Importantly, despite being alerted to the
jurisdictional challenges, in its replying affidavit the applicant
persisted with its
initial submission that this court had
jurisdiction. Furthermore, the applicant filed heads of argument in
which it failed or refused
to address the jurisdictional issues. The
respondent sought a punitive cost order against the applicant for
bringing the application
in this court when the court clearly had no
jurisdiction.
[15]
I do not intend to discuss all the jurisdictional
objections in this judgment. My order was based solely on the
objection set out
in para 13.1 above.
General principles:
Jurisdiction
[16]
In
Phahlane v SA Police Service & others
[6]
Van
Niekerk J (as he then was) succinctly stated:
“
This
court is a creature of statute. In terms of s157(1), subject to the
Constitution and s173, and except where the LRA provides
otherwise,
the court has exclusive jurisdiction in respect of all matters that
elsewhere in terms of the LRA or any other law are
to be determined
by the court. In other words, a party referring a dispute to this
court for adjudication must necessarily point
to a provision of the
LRA or some other law that provides for that dispute to be determined
by this court.
It
is incumbent on an applicant referring a matter to this court for
adjudication to identify the provision in the LRA, or any other
law,
which confers jurisdiction on this court to entertain the claim.
Jurisdiction is to be determined strictly on the basis of
the
applicant’s pleadings, the merits of the claim are not material
at this point
.
What is a determination of the legal basis for the claim, and then an
assessment pf whether the court has jurisdiction over it
(see Chirwa
v Transnet Ltd and others
[2007] ZACC 23
;
2008 (4) SA 367
(CC); 2008 29 ILJ 73 (CC)
at para 155, Gcaba v Minister for Safety and Security and others
2010
(1) SA 238
(CC) (2010) 31 ILJ 296 (CC) at para 75
.”
(Own emphasis)
Doctrine of
subsidiarity
[17]
The
applicant sought to rely directly on the constitutional right against
unfair
labour
practices.
This is impermissible and undermines the doctrine of subsidiarity.
The principle of subsidiarity was well summarized
by Snyman AJ in
Mlaba
v Minister of Home Affairs & another
[7]
as
follows:
[36] First
things first. The applicant seeks to rely directly on the
Constitution to substantiate his case of an unfair labour
practice.
This approach however flouts the principle of subsidiarity, since the
concept of
the prohibition of unfair labour practices is regulated
by the LRA
. In SA Human Rights Commission on behalf of SA
Jewish Board of Deputies v Masuku & another the court held:
‘
Broadly,
the principle of subsidiarity is the judicial theory whereby the
adjudication of substantive issues is determined
with reference to
more particular, rather than more general, constitutional norms. The
principle is based on the understanding
that, although the
Constitution enjoys superiority over other legal sources, its
existence does not threaten or displace ordinary
legal principles and
its superiority cannot oust legislative provisions enacted to give
life and content to rights introduced by
the Constitution. In simple
terms, the principle can be summarised thus:
“
Once
legislation to fulfil a constitutional right exists, the
Constitution’s embodiment of that right is no longer the prime
mechanism for its enforcement. The legislation is primary
.
The right in the Constitution plays only a subsidiary or supporting
role.”
Ultimately,
the
effect
of the principle is that it operates to ensure that disputes are
determined using the specific, often more comprehensive,
legislation
enacted to give effect to a constitutional right
,
preventing them from being determined by invoking the Constitution
and relying on the right directly, to the exclusion of that
legislation.’
[37]
In My Vote Counts NPC v Speaker of the National Assembly &
others the court described the principles
behind the doctrine of
subsidiarity in the following manner:
‘
First,
allowing a litigant to rely directly on a fundamental right contained
in the Constitution, rather than on legislation enacted
in terms of
the Constitution to give effect to that right, would defeat the
purpose of the Constitution in requiring the right
to be given effect
by means of national legislation. Second, comity between the arms of
government enjoins courts to respect the
efforts of other arms of
government in fulfilling constitutional rights. Third, allowing
reliance directly on constitutional rights,
in defiance of their
statutory embodiment, would encourage the development of two parallel
systems of law.’
[38]
There
can be no doubt that the LRA was intended to constitute the
comprehensive legislation which was specifically designed to give
effect to the protections afforded against unfair labour practices as
enshrined in s 23(1) of the Constitution
,
or in other words,
it is the LRA which gives effect to this fundamental right. The
doctrine of subsidiarity must therefore
find application, and it
would thus not be permitted for the applicant to seek to establish an
unfair labour practice by way of
a direct reliance on the
Constitution.
Such a situation was pertinently dealt with by the
Labour Court in Kapari & others v Office of the Chief
Justice &
another. In that case, the applicants relied on s
23 of the Constitution in support of declaratory relief sought to the
effect
that the respondents committed an unfair labour practice by
advertising their positions. The applicants in that case argued that
the LRA did not afford them a remedy because the definition of an
‘unfair labour practice’ in the LRA did not provide
for
advertising already-occupied positions, and therefore they would be
entitled to rely directly on s 23. The court dealt with
these
arguments as follows:
[15]
To disregard the principle of subsidiarity and grant access to this
(and other superior courts) on the basis of a direct application
of
the constitutional right to fair labour practices raises significant
issues of principle. Halton Cheadle, who was instrumental
in drafting
both the LRA and the Constitution, observes that a right to fair
labour practices is “an odd right to include
in a Bill of
Rights” and that its insertion into the interim Constitution
was part of a package of provisions to secure the
support of the
public service for the new constitutional dispensation, and in
particular, the restructuring and transformation
of the public sector
(Davis, Cheadle & Haysom Fundamental Rights in the
Constitution: Commentary and Cases at 212).
Should the
constitutional right to fair labour practices be held to extend
beyond the traditional triad (ie to test the validity
of legislation
that gives effect to the right, to interpret that legislation and to
develop the common law), and should it become
the basis for the
development of new, substantive rights, there is a clear danger that
the finely balanced agreement that the LRA
represents may be
unraveled by well-meaning but enthusiastic judges. This is especially
so where persons covered by the legislation
concerned seek to develop
a definition of unfair labour practice beyond that which already
exists. Not least, there is the prospect
of a “two-stream”
development of labour law, an issue that the LRA sought to eliminate
and address by establishing
a specialist labour court.
[16] In
short, it seems to me that to seek relief based on the direct
application of s 23(1) of the Constitution is
not an option open to
the applicants. Should the applicants contend that the provisions of
the LRA fail adequately to give expression
to their constitutional
right to fair labour practices, their remedy is to challenge the
constitutionality of that Act.’
I cannot agree more.
[39]
In National Education Health & Allied Workers Union &
others v University of SA & another the
Labour Court
followed the same approach, where the court said:
[22] [I]t is
well accepted that
direct reliance on the Constitution of the
Republic of SA 1996 (the Constitution) is impermissible in the light
of the subsidiarity
principle as correctly submitted by counsel for
the respondents. The subsidiarity principle dictates that, “where
legislation
has been enacted to give effect to a constitutional
right, a litigant must either rely upon that legislation or challenge
its constitutionality.
It cannot bypass legislation and rely directly
upon the right”,
unless the “factual situation is
complex and the legal position uncertain”. In the present case,
the converse is true
as the facts are crisp and predicable.
[23] The
applicants’ direct reliance on the Constitution rather than on
the provisions of the LRA pertaining to
unfair labour practice and/or
unfair dismissal undermined the principle of subsidiarity.’
[40]
It must follow that the
applicant’s direct reliance on s 23 of the Constitution is
ill-founded and simply not competent
.
The principle of subsidiarity stands squarely in the way of this part
of his case. The applicant is therefore limited to establishing
his
right to relief by reference to the LRA only, as he has not pleaded
nor relied upon any breach of contract.”
(Own
emphasis)
[18]
In the circumstances, the applicant cannot rely
directly on the constitutional right to fair labour practices. It
must rely on the
provisions of the LRA. The doctrine of subsidiarity
is well established and has been endorsed repeatedly by our courts.
This should
have come as no surprise to the applicant’s
representative.
[19]
Accordingly, the applicant’s reliance on
section 23 of the Constitution, and section 157(2) of the LRA does
not assist the
applicant to engage the jurisdiction of this court.
Provisions of the LRA
[20]
The relevant sections of the LRA are:
191(1)(a)
“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.
……
191(4): The
council
or the Commission must attempt to resolve the dispute through
conciliation
.
191(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
–
(a)
the council or the Commission must arbitrate
the dispute
at the request of
the employee if
-
…
(Own emphasis)
[21]
The provisions of the LRA, drafted in plain
language, are perfectly clear, at the very least to practitioners of
employment law.
Absent the frills, the LAC put it thus:
“
Disputes
concerning alleged unfair labour practices must be referred to the
CCMA or a bargaining council for conciliation and arbitration
in
accordance with the mandatory provisions of s 191(1) of the LRA.
”
[8]
[22]
In the circumstances, this court has no
jurisdiction in relation to unfair labour practices, at least, not as
a court of first instance.
Costs
[23]
Section 162(1) of the LRA permits this court, in
its discretion, to
make an order for the payment of costs,
according to the requirements of the law and fairness. When deciding
whether to award costs,
the court must consider
inter alia
whether the matter ought to have been referred to arbitration and, if
so, the extra costs incurred in referring the matter to the
court,
and the conduct of the parties in proceeding with or defending the
matter before the court.
[24]
In this matter, it was not fair for the applicant to drag the
respondent to court when the
dispute was so obviously in the wrong
forum.
[25]
It is
well established that the rule of practice that costs follow the
result does not govern this court
[9]
because it is necessary to strike a balance between not unduly
discouraging workers, employers (including employer organisations),
and unions from bringing their disputes to court and allowing
frivolous cases to be brought.
[26]
In
this matter, as the facts demonstrate, it must have been apparent to
the applicant, from the very outset, that this court did
not have
jurisdiction. The applicant’s representative, despite being an
officer of the court, chose to ignore the obvious
difficulties. This
conduct amounted to an abuse of court process and was frivolous and
vexatious. It was necessary for the court
to mark its displeasure. As
the court held in
National
Education Health & Allied Workers Union on behalf of Members
Providing Essential Health Services v Minister of Health
&
Others
[10]
:
“
This
court is, of course, not in any position whatsoever to dictate that a
spirit of cooperation must imbue how parties conduct
themselves or
express or advance their interests. But what the court can do is
adjust the standard of what constitutes frivolous
and vexatious
conduct in litigation.
In
this way, those who elect to pursue obviously untenable legal points,
use the court process as part of other power-plays, unnecessarily
consume the resources of their opponents or make allegations they
cannot substantiate know that they run the risk of a costs order
thereby should they lose
.”
(Own emphasis)
[27]
In
Pheko
and others v Ekurhuleni City
[11]
the Constitutional Court held:
[51]
Costs de bonis propriis are costs which a representative is
ordered to pay out of his or her own pocket as a
penalty for
some
improper conduct, for example, if he or she acted negligently or
unreasonably
. Whether a person acted negligently or
unreasonably must be decided in the light of the particular
circumstances of each
and every case.
[28]
In this matter, it is inconceivable that the
applicant’s representative, an attorney with experience of
employment law, was
entirely unaware that unfair labour practices are
routinely referred to the CCMA or, where appropriate, the bargaining
council.
If she was unaware that unfair labour practices are referred
to the CCMA or bargaining council, this amounted to gross negligence.
Even if I were to assume that the applicant’s legal
representative was unaware of section 191, she was alerted to the
jurisdictional
challenge as soon as the respondent filed its opposing
papers. The reasonable and responsible thing for her to do was to
withdraw
the application. Instead, the applicant’s
representative charged ahead. This was unreasonable.
[29]
The applicant wasted the court’s precious time, which could
have been diverted elsewhere.
[30]
Furthermore, to add insult to injury, when the
applicant filed its heads of argument it did not address the
jurisdictional challenge.
This could only have been because it was
aware that there were no answers.
[31]
In the circumstances, the applicant’s
representatives’ disrespect for the Rules of Court, the
administration of justice,
and its disregard for effective resolution
of employment disputes, warranted censure.
Conclusion
[32]
In the result, after considering the papers and
arguments made by the parties, I made an order dismissing the
application for lack
of jurisdiction and made an order of costs
de
bonis propriis
.
R Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Ms G Makoti
For the
Respondent:
Mr. E Nwedo
Instructed
by:
Lebea Attorneys
[1]
The period of the transfer was 1 May 2018 until 1 June 2021,
although it appears that LEDA continued paying the applicant until
31 March 2022.
[2]
Bafokeng
Rasimone Platinum Mine (Pty) Ltd v CCMA & others
(2015)
36
ILJ
3045
(LC)
[3]
Herbstein & Van Winsen
The
Civil Practice of the High Courts of SA
5
ed vol 1 at 433-4
[4]
Dicks v
South East Node (Pty) Ltd
(2011)
32 ILJ 1357 (LC)
[5]
Financial
Advisory & Intermediary Services Ombud v CCMA & others
(2021) 42 ILJ 2603 (LC)
[6]
(2021) 42 ILJ 569 (LC) at para 6
[7]
(2024) 45 ILJ 139 (LC) at paras 36 – 40
[8]
MEC
for Education, North-West Provincial Government v Gradwell
(2012)
33 ILJ 2033 (LAC) at para 46
[9]
Member
of the Executive Council for Finance, KwaZulu-Natal & another v
Dorkin NO & another
(2008)
29 ILJ 1707 (LAC) at para 19
[10]
(2020)
41 ILJ 1724 (LC) at para 61
[11]
2015 (5) SA 600
(CC)