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[2024] ZALAC 48
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Sorrell v Petroplan Sub-Saharan Africa (Pty) Ltd (CA02/2023) [2024] ZALAC 48; [2024] 12 BLLR 1285 (LAC); (2025) 46 ILJ 128 (LAC) (4 October 2024)

THE
LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA 02/2023
In the matter between:
MARK
SORRELL
Appellant
and
PETROPLAN
SUB-SAHARAN AFRICA (PTY) LTD
Respondent
Heard:
7 May
2024
Delivered:
4 October 2024
Coram:
Savage ADJP, Mlambo JA and Davis AJA
JUDGMENT
SAVAGE, ADJP
Introduction
[1]
This appeal, with the leave of the
Labour Court, is against the judgment and order of the Labour Court
(per Lagrange J) which
found that the Labour Court lacked territorial jurisdiction to
determine the appellant’s referral to the Labour Court, with

the matter consequently struck from the roll.
[2]
The
appellant, Mr Mark Sorrell, instituted a claim against the
respondent, Petroplan Sub-Saharan Africa (Pty) Ltd, in which he
sought a declaration that the termination of his services by the
respondent constituted a dismissal from his employment which was

either automatically unfair on account of having made a protected
disclosure in terms of the Protected Disclosures Act
[1]
(PDA) or, in the alternative, substantively and procedurally unfair.
The appellant sought that he be awarded the maximum compensation,

together with contractual damages in the form of remuneration due to
him for the balance of the fixed-term contract and consequential

damages arising from the termination of the contract. In the
alternative, and in the event that he was found not to be an employee

of the respondent but an independent contractor, the appellant sought
to be awarded damages or compensation for suffering an occupational

detriment under the PDA.
[3]
In opposing the matter, the respondent
raised a challenge to the jurisdiction of the
Labour Court on
the basis that the appellant’s claim did not fall under the
territorial jurisdiction of the Court. The respondent
also disputed
that the appellant was an employee in that he had been appointed as
an independent contractor. To allow the issue
of territorial
jurisdiction to be determined, the parties agreed that only for the
purposes of the Court’s ruling on that
issue it would be
assumed that the appellant was employed by the respondent. Evidence
was therefore led only on the Court’s
territorial jurisdiction,
an issue on which only the appellant testified.
Factual
background
[4]
I
n
December 2020 a consultancy agreement, which was not implemented due
to legal compliance obstacles, was concluded between Offshore
Project
Management & Engineering Ltd (OFMEL), a company registered in the
British Virgin Islands of which the appellant was
the beneficial
owner, and Petro Plan Europe Ltd (PEL), a company registered in the
United Kingdom. In terms of the agreement, OFMEL
was to provide the
services of a Logistics Superintendent at a gas exploration project
in Mozambique to PEL’s client, Sasol
Petroleum Temane Limitada
and Sasol Petroleum Mozambique Limitada, companies registered in
Mozambique and the United Kingdom respectively.
[5]
As a result, on 27 January 2021, an
Independent Contractor Agreement (ICA) was concluded in South Africa
between the appellant and
the respondent, a company incorporated in
South Africa. In terms of the agreement, the appellant was to perform
the role of Logistics
Superintendent for the respondent’s
clients, Sasol Petroleum Temane Limitada, Sasol Petroleum Mozambique
Limitada and Sasol
United Kingdom, at a gas exploration project in
Mozambique.
[6]
Clause 1.3 of the ICA recorded that the
agreement was –
‘…
dependent
on the successful application for a Mozambique and/or South Africa
visa if applicable and satisfactory medical examination
results. If
for any reason this application is unsuccessful or the medical
examination results are unsatisfactory/unacceptable
to the client,
this Agreement will be null and void.’
[7]
Annexure 1 to the ICA provided that the
place where services were to be performed was Mozambique. The role
was to be shared on rotational
shifts between the appellant and
another person on alternating duty cycles on a roster system. Working
hours, shift rotations and
the project mobilisation date were to be
communicated to the appellant by the respondent once received from
the client. In order
to obtain a visa and permit to work in
Mozambique, the appellant entered into an employment contract with
Sasol Petroleum Mozambique
Limitada.
[8]
In his evidence before the Labour Court,
the appellant accepted that the role of Logistics Superintendent was
an “in-field”
role in Mozambique, on location at the
remote gas exploration site, reporting to a field operations manager,
with Sasol United
Kingdom responsible for directing operations at the
site. He accepted that had he been able to attend to work physically,
he would
have done so on-site in Mozambique but that because of
COVID-19 and visa complications, he had to work at home on
an alternating duty
cycle during the months of January,
March, May and part of June 2021. In a letter dated 24 June 2021
issued by the respondent,
the appellant’s services were
terminated. By this time, he had obtained a visa but not a work
permit allowing him to work
in Mozambique.
Judgment
of the Labour Court
[9]
A
challenge to the Labour Court’s territorial jurisdiction was
raised for the first time
by the respondent in an application for condonation and was neither
dealt with in the pleadings nor the pre-trial minute concluded

between the parties. The Labour Court, with reference to
Commercial
Workers Union of SA v Tao Ying Metal Industries & others
[2]
,
dealt with the jurisdictional challenge finding that the principle of
legality obligates a court to deal with a point of law,
even if the
parties were unaware of it, where a failure to do so could lead to a
decision based on the incorrect application of
the law. That finding
is not the subject of appeal.
[10]
With
reference to the relevant authorities, the Court found, as a question
of fact that since Mozambique and not South Africa was
the workplace
where the appellant was to render his services, the Court lacked
territorial jurisdiction to entertain the appellant’s
claims.
The matter was consequently struck off the roll. In doing so, the
Labour Court distanced itself from the decision in
MECS
Africa (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
(
MECS)
)
,
finding
that it is not the place at which the employer conducts its business
which determines the place of employment for purposes
of jurisdiction
but the location of the actual workplace where the employee renders
services.
On
appeal
[11]
The
appellant contends on appeal that the Labour Court erred in finding
that it lacked territorial jurisdiction in relation to his
claims
under the Labour Relations Act
[4]
(LRA),
the Basic Conditions of Employment Act
[5]
(BCEA) and the PDA because the undertaking in which the appellant was
engaged was not wholly separate and divorced from South Africa
and
the appellant's physical workplace was in South Africa. It was
contended that t
he
location of the undertaking of the client is relevant to the
determination of territorial jurisdiction, not the location of the

actual workplace. Since the appellant provided services to entities
in the United Kingdom, Mozambique and South Africa, the undertakings

of the entities in Mozambique were not separate and divorced from the
undertakings of Sasol entities in the United Kingdom and
South
Africa, with the project planning phase taking place outside of
Mozambique. It was argued that conflicting judgments exist
on the
issue of territorial jurisdiction and that the test in
Monare
v South African Tourism and Others
[6]
(
Monare
)
should have been applied, more so
with
regard to claims involving a temporary employment services (TES) as
employer in terms of the LRA, section 77(3) of the BCEA
and the PDA.
Since
the respondent, as the TES, is located in and conducted business in
South Africa, it was submitted that the Labour Court erred
in finding
that it lacked territorial jurisdiction
[7]
when the
extra-territorial
jurisdiction in respect of a worker as defined in the PDA has not
been decided by our courts. The appellant therefore
seeks that the
appeal be upheld with costs, both on appeal and in the Labour Court
given that the jurisdiction challenge was not
raised on the
pleadings.
[12]
The
respondent
disputed that competing judgments exist on the issue and
contended
that the issue has been authoritatively settled by this Court in
Chemical
and Industrial Workers Union v Sopelog CC (Sopelog
)
)
,
[8]
Monare
and
Astral
Operations
Ltd v Parry
[9]
(Astral), the principles of which were followed in
Robineau
v
Schenker SA (Pty) Ltd and Others
[10]
(
Robineau)
,
and by the Appellate Division in
Genrec
Mei
(Pty)
Ltd v Industrial Council for the Iron, Steel, Engineering,
Metallurgical Industry and Others
[11]
(
Genrec
Mei
)
.
It was stated that the Labour Court was not bound by the decision in
MECS
but by its own decisions. As a question of fact, the location of the
appellant’s workplace in terms of the ICA was outside
of the
territorial jurisdiction of South Africa, with Sasol’s
operations in Mozambique and the United Kingdom not related
to any
South African undertaking. The fact that the appellant worked from
home in South Africa did not detract from the agreed
place where
services were to be performed, being Mozambique. The respondent
therefore contended that the Labour Court correctly
found that it
lacked jurisdiction in the matter and that the appeal falls to be
dismissed.
Evaluation
[13]
A
court must have jurisdiction in the sense of power or competence
vested in it to adjudicate, determine and dispose of a matter.
[12]
In terms
of
section 151(2) of the LRA, the Labour Court has jurisdiction in all
the provinces of the Republic. Whether the Labour Court has

jurisdiction is a factual issue which is determined
with
reference to the location of the physical workplace of the employee
and not the place where
the
contract of employment was concluded.
[14]
In
Astral
[13]
,
this Court followed the decision of
Genrec
Mei
in which, although the employer’s principal place of business
was in Durban, it recruited the employees in Durban to perform
work
on an oil rig outside of South African territorial waters.
The
Court
found that (a) where an undertaking is carried on at any given time
is a question of fact; (b) although Genrec carried on an undertaking

in Durban, it was also engaged in another undertaking conducted on
the rig; (c) the vast majority of Genrec's employees working
on the
rig were not part of its regular workforce; (d) the respondent
employees were recruited specially for employment to work
on the rig;
(e) the respondent employees' contracts of employment were of limited
duration and were to come to an end on the completion
of a particular
contract and, thereafter, they would no longer be employees of
Genrec. The Court found that the employees were
not employed in
Durban and that the 1956 Labour Relations Act did not, prior to its
amendment in 1991, apply to the undertaking
operated by the employer
on the oil rig above the continental shelf outside South African
territorial waters.
[15]
In
Astral
[14]
,
this Court relied on the same criteria to find that while the
employer operated a business from South Africa, its subsidiary
business in Malawi was an incorporated concern with a separate
personality, and that the employee was resident in South Africa but

had entered into a contract of employment requiring them to work
outside South Africa. The LRA was therefore found not to apply
to the
appellant's operation in Malawi. In
Robineau,
this
Court followed these decisions and in
Antonio
v Commission for Conciliation, Mediation and Arbitration and
Others
[15]
,
the
Labour Court found that the CCMA lacked jurisdiction in that the
employee was employed in Angola for a legal entity
separate
and divorced from the third respondent and when an express term of
the employee's employment contract was that Angolan
law
would
apply.
[16]
In
Monare
[16]
,
this
Court distinguished that matter from
Astral
and
Genrec
Mei
on the basis that, although the employee was employed in the first
respondent's London office, that office was not an undertaking

separate and divorced from the respondent’s undertaking in
South Africa, but inextricably linked to it.
[17]
[17]
In terms of his ICA, the appellant’s
workplace was Mozambique, outside of the territorial jurisdiction of
South Africa. Annexure
1 to the ICA recorded as much, detailing that
the place where his services were to be performed was Mozambique to
clients Sasol
Petroleum Temane Limitada and Sasol Petroleum
Mozambique Limitada, both incorporated and resident in Mozambique,
and Sasol UK Limited,
incorporated and resident in the United
Kingdom. It followed that in terms of the ICA, the appellant was to
provide services to
foreign clients in foreign locations. The
appellant confirmed as much in his evidence, accepting that his was
an “in-field”
role
on
a rotational shift basis
in
Mozambique. He accepted that the regulatory regime applicable to
health and safety on site was that of Mozambique, coupled with

international standards.
This
was not altered by the fact that, due to delays in the mobilisation
of the project and in obtaining his work permit, from January
2021
until the termination of his services in June 2021, the appellant
worked from home in South Africa.
[18]
A
lthough
the respondent’s principal place of business is South Africa,
it recruited the appellant to perform work in the undertaking
on
location in Mozambique. The appellant conceded that the respondent
had no direct technical control of Sasol’s campaign
and that as
a TES, it was separate and divorced from the undertaking to which he
provided services. In addition, he accepted that
the majority of
other contracted employees were recruited to work in Mozambique, on
limited duration contracts which would terminate
on the completion of
the project.
[19]
The appellant contended however that the
fact that the respondent is a TES distinguished this matter from the
line of cases which
have preceded it. I am not persuaded that this is
so. An employer may conduct more than one undertaking, with the
location
of an undertaking at any given time, ultimately being a
question of fact. While
the undertaking
of the respondent TES is located in South Africa, this does not alter
the fact that, as with other individuals similarly
contracted, the
clear facts show that the appellant was contracted to work on a
limited duration contract
in
an undertaking in Mozambique which was separate and divorced from the
recruitment business of the respondent TES located in South
Africa.
[20]
The appellant sought to place reliance
on the decision of the Labour Court in
MECS,
in which the employee was found to have been employed by entities in
South Africa and the Democratic Republic of the Congo (DRC),
the
latter in order to obtain a work permit in the DRC. That matter is
neither binding on this Court, nor does it accord with the
line of
cases before it which have established the principles relevant to the
determination of territorial jurisdiction.
[21]
The
territorial application
of the LRA is to be determined according to the locality of the
undertaking for whom the appellant
was contracted to provide
services, and not the location of the undertaking of the respondent
TES. The fact that section 198 of
the LRA stipulates that the
employee is employed by the TES and not by the client of the TES does
not alter this conclusion. This
is so in that the undertaking of the
TES, involved with the recruitment of personnel for clients, is an
undertaking distinct from
the rendering of services to clients at
particular locations and workplaces. It follows that the jurisdiction
of the Labour Court
is not to be determined solely on the basis that,
in terms of section 188 of the LRA, the appellant is stipulated to be
employed
by the TES, but with regard to the location of the
undertaking to which the appellant was engaged to provide services.
[22]
Since the location of such undertaking
was Mozambique, the Labour Court committed no error or misdirection
in striking the matter
from the roll. No interference with such order
is warranted and this appeal therefore falls to be dismissed. There
is no reason
in law or fairness why an order of costs should be made
in this matter.
[23]
In the result, the following order is
made:
Order
1.
The appeal is dismissed with no order as
to costs.
SAVAGE
ADJP
Mlambo
JA and Davis AJA agree.
APPEARANCES:
FOR
THE APPELLANT:  Mr P Kantor
FOR
RESPONDENT:      Mr F A Boda SC
Instructed by Cliffe
Dekker Hofmeyr Inc
[1]
Act 26 of 2000.
[2]
[2008]
ZACC 15
;
2009
(2) SA 204
(CC) at para
[68]
.
[3]
[2013] ZALCJHB 195; (2014) 35 ILJ 745 (LC).
[4]
Act
66 of 1995, as amended.
[5]
Act 75 of 1997.
[6]
[2015]
ZALAC 47
;
[2016] 2 BLLR 115
(LAC).
[7]
Section
198(2) of the LRA provides that:
“
For
the purposes of this Act, a person whose services have been procured
for or provided to a client by a temporary employment
service is the
employee of that temporary employment service, and the temporary
employment service is that person's employer
”
.
[8]
(1993)
14 ILJ
144
(LAC).
[9]
Astral
Operations Ltd v Parry
[2008]
ZALAC 29
; (2008) 29 IL 2668 (LAC) (4 September 2008) at paras 18 and
20.
[10]
Robineau
v Schenker SA (Pty) Ltd and Others
(2020)
41 ILJ 1648 (LAC).
[11]
Genrec
Mei (Pty) Ltd v Industrial Council for the Iron, Steel, Engineering,
Metallurgical Industry and Others
[1994]
ZASCA 143; 1995 (1) SA 563 (AD).; [1995] 4 BLLR 1 (AD); [1995] 1 All
SA 501 (A).
[12]
See:
Ewing
McDonald & Co v M&M
Products
Co
[1990] ZASCA 115
;
1991
(1) SA 252
(A) at 256G;
Graaff-Reinet
Municipality v Van Ryneveld’s Pass Irrigation Board
1950 (2) SA 420
(A) at 424 referred to in
Gcaba
v Minister of Safety and Security
[
2009]
ZACC 26; 2010 (1) SA 238 (CC).
[13]
Astral
supra
at
paras 18 and 20.
[14]
Astral
supra
at
paras 49 and 50.
[15]
(JR1110/15)
[2018]
ZALCJHB 454
(30
October 2018).
[16]
Monare
supra
at
para 20
.
[17]
Ibid
at paras 35 - 36 and 41.