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[2001] ZALAC 3
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Langeveldt v Vryburg Transitional Local Council (JA21/00) [2001] ZALAC 3; 2001 (6) BCLR 554 (LAC); [2001] 5 BLLR 501 (LAC); (2001) 22 ILJ 1116 (LAC) (28 February 2001)
64
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO:JA21/00
In the matter between
WILLIAM RALPH JOEY LANGEVELDT
APPELLANT
AND
VRYBURG TRANSITIONAL LOCAL
COUNCIL 1
ST
RESPONDENT
J. HIEMSTRA N.O
2
ND
RESPONDENT
J.P.STEMMET N.O
3
RD
RESPONDENT
PREMIER (NORTH PROVINCE)
4
TH
RESPONDENT
JUDGEMENT
ZONDO JP
Introduction
[1]
The appellant, a former
Town Clerk of Vryburg, brought a review application in the Labour
Court to set aside the first respondent's
decision to dismiss him.
The Labour Court, per Stelzner AJ, dismissed his application with
costs. With the leave of the Court
a quo, the appellant now appeals
against that judgement.
The relevant facts
[2] The appellant was appointed as
the Town Clerk of the first respondent with effect from the 1
st
March 1997. During the first half of 1998 and following upon a
certain investigation, he was charged with various acts of
misconduct
by the first respondent. Altogether there were 23
charges or allegations of misconduct preferred against him. The
ensuing disciplinary
inquiry into those charges was chaired by the
third respondent at the request of the first respondent. The
appellant denied all
the charges. However, the result of the
inquiry was that the third respondent found him guilty of some but
not all of the 23 charges
of misconduct and recommended his
dismissal. Pursuant to the finding and recommendations of the
chairperson of the disciplinary
inquiry, the first respondent
adopted a resolution in accordance therewith on the 29
th
June 1998 and dismissed him with effect from the 1
st
July
1998.
[3] Subsequently, the appellant
noted an internal appeal against the third respondent's findings of
guilt and the decision to recommend
the appellant's dismissal. The
first respondent appointed the second respondent as an appeal
committee to hear the appellant's
appeal. The second respondent
upheld the appellant's appeal in respect of certain charges but, in
the end, concluded that the
dismissal should stand because the trust
relationship between the parties had been destroyed. The second
respondent issued his
findings of the internal appeal on the 26
th
August 1998. On the 27
th
August 1998 the first
respondent adopted the second respondents findings.
[4] Subsequent to the adoption by
the respondent of the second respondents findings, the appellant
referred his dismissal dispute
to the North West Division of the
South African Local Government Bargaining Council for conciliation.
A meeting to conciliate
the dispute was apparently held on the 2
nd
October 1998 but failed to produce an agreement between the parties.
The appellant then requested that the dismissal dispute be
arbitrated. The dispute was set down for arbitration by the
Commission for Conciliation Mediation and Arbitration (
"the
CCMA"
) on the 14
th
January 1999. However, the
arbitration did not proceed on that day. Subsequently, the
appellant decided to launch a review application
in the Court a quo
after he had been advised that the CCMA had no review jurisdiction.
There was no objection by the first respondent
to the launch of the
review application in the Court a quo. The arbitration was
postponed indefinitely pending the outcome of
the review. I have
already indicated above that that application was dismissed with
costs by the Court a quo. It is that order
which is the subject
matter of this appeal.
The appeal
[5] The first question which arises
on appeal is whether the Court a quo had jurisdiction to entertain a
review application relating
to the decision of the first respondent,
a local council, to dismiss the appellant. The appellant purported
to bring this review
application in the Labour Court in terms of
section 158(1)(h) of the Labour Relations Act, 1995 (Act No 66 of
1995) (
"the Act"
). Sec 158(1)(h) gives the Labour
Court power to "
review any decision taken or any act
performed by the State in its capacity as employer on such grounds
as are permissible in law
". It was submitted on behalf of
the appellant that the first respondent was an organ of state as
defined in sec 239 of the
Constitution of the Republic of South
Africa, 1996 and that, therefore, when it makes a decision or
performs an act, such decision
or act can be said to be a decision
or act of the State. Sec 239 of the Constitution defines an organ
of state as meaning:-
"
(a) any department of
state or administration in the national, provincial or local sphere
of government; and
(b) any other functionary or
institution-
(i) exercising a power or
performing a function in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power
or performing a public function in terms of any legislation, but
does not include a court or a judicial
officer.
"
Counsel for the respondent did not
argue against this submission. I am satisfied that the submission
is correct and that the Court
a quo did have jurisdiction to
entertain the appellant's review application in terms of section
158(1)(h) of the Act.
Jurisdictional Problems in employment and labour disputes: A
need
for legislative intervention to streamline the dispute
resolution
system!
[6] At this stage of this
judgement, I consider it my duty to raise a matter of grave concern
regarding the dispute resolution
system applicable to employment and
labour disputes in our country. The problem is about the efficient
utilisation of our resources,
litigation costs and the effectiveness
or otherwise of the dispute resolution system. As our law presently
stands there are employment
or labour disputes or matters which:-
[a] only the Labour Court has
jurisdiction to deal with;
[b] only the High Courts have
jurisdiction to deal with;
[c] both the Labour Court and the
High Courts have jurisdiction to deal with;
[d] the Commission for
Conciliation, Mediation and Arbitration (
âthe CCMAâ
),
bargaining councils, the Labour Court, the High Courts and the
Constitutional Court have jurisdiction to deal with in one way
or
another.
[7] As a result there is much
uncertainty and confusion concerning in which employment and
labour matters each of
the
different courts and institutions
has exclusive jurisdiction, has no jurisdiction, or enjoys
concurrent jurisdiction with another
court or institution. Although
the jurisdiction of the CCMA presents problems, the most frequent
difficulties relate to the overlap
of jurisdiction between the
Labour Court and the High Courts. Before I can demonstrate the
uncertainty, confusion and unacceptable
state of affairs that exist
in this regard, I think it necessary to give an overview of the
jurisdiction, powers and status of
the Labour Court and the High
Courts.
The Labour Court, its status and
its judges
[8] In terms of sec 166(e) of the
Constitution of the Republic of South Africa 1996, (
âthe
Constitutionâ
) provision is made for a court of a status
similar to that of a High Court which is established or recognised
by an Act of Parliament.
The Labour Court is such a recognized
court because sec 151(2) of the Act provides that it is "
a
superior court that has authority, inherent powers and standing, in
relation to matters under its jurisdiction, equal to that
which a
[High Court] has in relation to matters under its jurisdiction.
"
Appeals from decisions of the Labour Court are dealt with by this
Court, a court which enjoys the same status as the Supreme
Court of
Appeal in relation to matters which fall under its jurisdiction. The
Labour Court is headed by a Judge President. Such
Judge President
is required to be a judge of a High Court and also to have
knowledge, experience and expertise in labour law (sec
152(1)(a)
and 153(2) of the Act). The Judge President is appointed by the
President of the Republic
(âthe Presidentâ)
on the advice
of the Judicial Service Commission (
âthe JSCâ
) and the
National Economic Development and Labour Council
(âNEDLACâ)
established by sec 2 of the National Economic Development and Labour
Council Act, 1994 (Act 35 of 1994) after consultation with
the
Minister of Justice and Constitutional Development. The Act also
makes provision for a Deputy Judge President of the Labour
Court.
As in the case of the Judge President, the Deputy Judge President
must also be a judge of a High Court and must have knowledge,
experience and expertise in labour law. In respect of the
appointment of the Deputy Judge President, the Judge President must
be consulted (sec 153(1)(6) and (2)) of the Act).
[9] Judges of the Labour Court are
appointed by the President on the advice of the JSC. The same
occurs in respect of the appointment
of judges of the High Courts.
This is in accordance with sec 174(6) of the Constitution. However,
there are additional requirements
of a procedural nature which must
be met in regard to the appointment of judges of the Labour Court.
These are prescribed by the
provisions of sec 153(1)(a),(b) and (4)
of the Act. Sec 153(4) requires the President to appoint judges of
the Labour Court on
the advice of the JSC and Nedlac. In addition,
those provisions require consultation with the Minister of Justice
and the Judge
President of the Labour Court in regard to the
appointment of all judges of the Labour Court.
[10] In terms of sec 153(b) of the
Act a person is required to be a judge of a High Court or a legal
practitioner
1
who has knowledge, experience and
expertise in labour law in order to be eligible for appointment as a
judge of the Labour Court.
In other words, any judge of the Labour
Court is either already a judge of a High Court when he is appointed
as a judge of the
Labour Court or if he is not, he/she is, before
appointment, a legal practitioner with knowledge, experience and
expertise in labour
law. In terms of sec 154(5)(a) of the Act the
remuneration payable to a judge of the Labour Court must be the same
as the remuneration
payable to a judge of a High Court. In terms of
sec 154(5)(b) of the Act the terms and conditions of appointment of
a judge of
the Labour Court must be similar to those of a judge of a
High Court.
Jurisdiction and Powers of
the Labour Court
[11] As the Labour Court is a court
of a status similar to that of a High Court, it has power in terms
of sec 172(2) of the Constitution
"
to make an order
concerning the constitutional invalidity of an Act of Parliament, a
provincial Act or any conduct of the President.
" As is
the case with orders of constitutional invalidity made by a High
Court, an order of constitutional invalidity made
by the Labour
______________________________________________________________
In terms of sec 213 of the Act
this means âany person admitted to practice as an advocate or an
attorney in the Republic.â
Court does not become
operative unless it is confirmed by the Constitutional Court. Sec
172(2)(b) provides that a court which makes
an order of
constitutional invalidity may grant "
a
temporary interdict or other temporary relief to a party or may
adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of that Act or conduct.
"
Sec 169(b) of the Constitution provides that a High Court may
decide "
any constitutional matter
"
except a matter that "
is assigned by an
Act Parliament to another court of a status similar to a High
Court.
" This provision ensures that
High Courts have no jurisdiction in constitutional matters which
have been assigned to the Labour
Court by an Act of Parliament.
[12] The primary provision in the
Act which deals with the jurisdiction of the Labour Court is sec
157. However, there are other
sections of the Act which confer
jurisdiction on the Labour Court to deal with various disputes. The
provisions of sec 157(1),
(2) and (5) of the Act read thus:-
"
157 Jurisdiction of Labour
Court
(1) Subject to the Constitution
and section 173, and except where this Act provides otherwise, the
Labour Court has exclusive jurisdiction
in respect of all matters
that elsewhere in terms of this Act or in terms of any other law are
to be determined by the Labour Court.
(2) The Labour Court has
concurrent jurisdiction with the High Court in respect of any
alleged or threatened violation of any fundamental
right entrenched
in Chapter
2 of the Constitution of the
Republic of South Africa, 1996, and arising from-
(a) employment and from labour
relations;
(b) any dispute over
the constitutionality of any executive or administrative act or
conduct or any threatened executive or
administrative act or conduct
by the State in its capacity as an employer; and
(c) the application of
any law for the administration of which the
Minister [of Labour] is responsible.
(3)
¼
(4)
¼
(5) Except as provided in
section 158(2), the Labour Court does not have jurisdiction to
adjudicate an unresolved dispute if this
Act requires the dispute to
be resolved through arbitration.â
[13] Under sec 158(1) of the Act a
list of powers of the Labour Court is provided. It includes the
power to grant interdicts, urgent
interim relief, declaratory
orders, compensation and damages in circumstances contemplated by
the Act, an order compelling compliance
with provisions of the Act,
to review, âdespite sec
145', the performance or purported
performance of any function
provided for in the Act or any act
or omission of any person or body in terms of the Act on any grounds
that are permissible in
law, to review any decision taken or any act
performed by the State in its capacity as employer on such grounds
as are permissible
in law and to deal with all matters necessary or
incidental to performing its functions in terms of the Act or any
other law.
[14] The provisions of sec 77(1) of
the Basic Conditions of Employment Act, 1997 (Act No 75 of 1997)
(
"the BCEA"
) mirror the provisions of sec 157(1) of
the Act. The provisions of sec 77(1)-(5) read thus:-
"
77.Jurisdiction of Labour
Court.
(1) Subject to the Constitution
and the jurisdiction of the Labour Appeal Court, and except where
this Act provides otherwise, the
Labour Court has exclusive
jurisdiction in respect of all matters in terms of this Act, except
in respect of an offence specified
in sections 43, 44, 46,48, 90 and
92.
The
Labour Court may review the performance or purported performance of
any function provided for in this Act or any act or omission
of any
person in terms of this Act on any grounds that are permissible in
law.
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 condition of employment
constitutes a term of that contract.
(4) Subsection
(1) does not prevent any person relying upon a provision of this
Act to establish that a basic condition of employment
constitutes a
term of a contract of employment in any proceedings in a civil court
or an arbitration held in terms of an agreement.
(5) If
proceedings concerning any matter contemplated in terms of
subsection (1) are instituted in a court that does not have
jurisdiction
in respect of that matter, that court may at any stage
during proceedings refer that matter to the Labour Court."
[15] Sec
68 of the Act is another section of the Act that confers
jurisdiction on the Labour Court . Sec 68(1)(a) provides:-
"(1)
In
the case of any strike or lock-out, or any conduct in contemplation
or in furtherance of a strike or lock-out, that does not
comply with
the provisions of this Chapter, the Labour Court has exclusive
jurisdiction-
(a)
to grant an interdict or order to restrain-
(i) any
person from participating in a strike or any conduct in
contemplation or in furtherance of a strike; or
(ii)
any person from participating in a lock-out or any conduct in
contemplation or in furtherance of a lock-out;
"
[16]
Sec 68(1)(b) confers
âexclusive jurisdictionâ
on the
Labour Court to
âorder the payment of just and equitable
compensation for any loss attributable to â
an unprotected
strike or lock-out. Another section that confers jurisdiction on
the Labour Court is sec 69. This section permits
picketing by
members or supporters of a registered trade union where such
picketing is authorised by that union and is in support
of a
protected strike or is in opposition to any lock-out. It requires
the union and the employer to agree on picketing rules
to be
observed during a picket but says that, in the absence of such
agreement , the CCMA may impose picketing rules on such parties.
It
then provides that, should a dispute about an alleged breach of such
rules not be resolved by the CCMA through conciliation,
such dispute
must be referred to the Labour Court for adjudication. Picketing
rules would normally include a prohibition of conduct
such as
intimidation, harassment, assault and other acts of violence during
such picket or strike.
[17]
The provisions of sec 191(5)(a) and (b) are also of relevance. Sec
191 provides for the procedure to be followed whenever
"
there
is
a dispute about the fairness of a dismissal
.
"
Sec 191(5) provides that if, after attempts at conciliation have
failed, such a dispute remains unresolved, it must be referred
either to the CCMA or a council with jurisdiction for arbitration or
to the Labour Court for adjudication. Whether such a dispute
is
referred to the CCMA, or, a council, for arbitration, or, to the
Labour Court for adjudication, depends on the reason for dismissal
as alleged by the employee. If, for example, the employee alleges
that the reason for his dismissal is certain alleged conduct
on his
part, that dismissal dispute is required by sec 191 (5)(a) to be
arbitrated by the CCMA or the relevant council.
[18] If, however, the employee
alleges that the reason for dismissal is the employer's operational
requirements (which includes
retrenchments), the dismissal dispute
is required to be referred to the Labour Court for adjudication (sec
191(5)(b)). Furthermore,
there are certain reasons for dismissal
which, if they were to be proved, would render the dismissal
automatically unfair in terms
of the Act. Such reasons include
pregnancy or intended pregnancy or any reason related to pregnancy
as well as cases where the
employer unfairly discriminated against
the employee, directly or indirectly, on any arbitrary ground,
including but not limited
to, race, gender, sex, ethnicity or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, political
opinion, culture, language, marital
status or family responsibility. (sec 191(5)(b)(1) read with sec
187 (1)(e) and (f) ). Automatically
unfair dismissal disputes are
required to be adjudicated upon by the Labour Court in terms of sec
191(5)(b) of the Act.
[19] It is also necessary to
refer to the provisions of items 2, 3 and 4 of Schedule 7 to the
Act. These items deal with residual
unfair labour practice disputes
and the process relating to their resolution. Item 2 (1) reads as
follows:-
"
2. Residual unfair labour
practices-
For the purposes of this
item, an unfair labour practice means any unfair act or omission
that arises between an employer and an
employee involving
(a) ......
(b) the unfair conduct of the
employer relating to the promotion, demotion or training of an
employee or relating to the provision
of benefits to an employee;
(c) the
unfair suspension of an employee or any other disciplinary action
short of dismissal in respect of an employee;
(d) the failure or refusal
of an employer to reinstate or re-employ a former employee in terms
of any agreement.
"
[20] Paragraph (a)
of item 2(1) has been deleted from the Act. This is because
sec 6
of the
Employment Equity Act, 1998
now covers the matters previously
covered by item 2(1)(a). Item 3 requires such disputes to be
referred to conciliation. If conciliation
fails, such disputes are
required to be referred to the CCMA or a council
with jurisdiction for arbitration.
[21]
Against
the above background reference can also be made to the
jurisdiction of the
High Courts.
2
Sec 169
of the
Constitution confers jurisdiction on a High Court to "
decide-
(a) any constitutional
matter except a matter that
(i) only the Constitutional
Court may decide; or
(ii) is assigned by an Act of
Parliament to another court of a status similar to a High Court;
and
(b) any other matter not
assigned to another court by an Act of Parliament.
"
[22] Sec 172 (2)(a) of the
Constitution confers jurisdiction on, among other courts, a High
Court to "
make an order concerning the constitutional
validity of an Act of Parliament, a provincial Act or any conduct of
the President,
but an order of constitutional invalidity has no
force unless it is confirmed by the Constitutional Court.
"
When deciding a constitutional matter which is within its
competence, a High Court, like any court deciding such a matter,
must declare that any law or conduct that is inconsistent with the
_____________________________________________________________________________________
2 Sec 166
(c) of the
Constitution recognises what it refers to as
âthe
High Courtsâ
. Provincial and local
divisions of what used to be called the Supreme Court in the
pre-1996 era certainly fall within the ambit
of the term â
High
Courtsâ
as contemplated in sec 166 (c).
The term may or may not be limited to such courts. One notes that
sec 166(c) also refers to
âany high court
of appeal that may be established by an Act of Parliament to hear
appeals from High Courts.â
From the fact
that sec 166(c) refers
to
âHigh Courtsâ in the plural form as opposed to the High Court,
it appears that, subject to the effect of the Supreme Court
Act,
1959, which has not been repealed, it is not accurate to refer to
such courts as provincial divisions of the High Court. Probably
each
is a High Court in its own right.
Constitution is invalid to the
extent of such inconsistency (sec 172 (1)(a)). It also has power in
such a case in terms of sec
172 (2)(b) to grant a temporary
interdict or other temporary relief to a party or to adjourn the
proceedings pending a decision
of the Constitutional Court on the
validity of that Act or conduct. In terms of sec 173 a High Court
has the inherent power to
protect and regulate its own process and
to develop the common law taking into account the interests of
justice. In terms of sec
19 (1)(a) of the Supreme Court Act, 1959
(Act No 59 of 1959) a High Court has
âjurisdiction in relation
to all causes arising .... within its area of jurisdiction and all
other matters of which it may according
to law take cognizance
...â
With some of the important statutory provisions relating to the
jurisdiction of the Labour Court and the High Courts having
been
dealt with, it is now appropriate to turn to the unsatisfactory
state of affairs which various statutory provisions have produced.
Some of the jurisdictional
problems arising from the overlap
in jurisdiction between
the Labour Court and the High Courts
.
[23] An examination of
the law reports over the past four years when the Labour Court
became fully operational reveals a number
of employment and labour
matters which have come before various High Courts. In most of those
cases the High Courts have been confronted
time and again with the
question of whether they had jurisdiction in such matters despite
the existence of the Labour Court or
whether only the Labour Court
had jurisdiction in such matters. A reading of those cases clearly
reveals the jurisdictional complexities
which the present state of
the law has produced. Some of the cases are
Mondi Paper (a Division of Mondi Ltd) v Paper, Printing, Wood and
Allied Workers Union & Others
(1997)
18 ILJ 84 (D);
Sappi Fine Papers (Pty) Ltd (Adam as
Mill) v Paper, Printing, Wood and Allied Workers Union & Others
(1998)
19 ILJ 246 (SE)
;
Mcosini v Mancotywa & Another
(1998)
19 ILJ 1413
(TK);
Coin
Security Group v SA National union for Security Forces 1998(1) sa
685 (c); Communication Workers Union & Another
v
Telkom Ltd & Another (1999) 20 ILJ 991 (T); Independent
Municipal and Allied Trade Union v Northern Pretoria Metropolitan
Substructure & Others
(1999)
20 ILJ 1018 (T);
Fourways
Mall v S A Commercial Catering and Allied Workers Union
1999 (3) SA 752
(W);
(1999 ) 20 ILJ
1008(W);Mgijima v Eastern Cape Appropriate
Technology Unit & Another
2000 (2) SA
291
(TK);
Louw v Acting Chairman of the Board
of Directors of the North West Housing Corporation & Another
(2000) 21 ILJ 481 (B);
Essack
& Another v Commission ON Gender Equality
(2000)
21 ILJ 467 (W);
Kritzinger v Newcastle
Plaaslike Oorgansraad and Others
(1999) 20
ILJ 2507 (N);
Jacot-Guillarmod v Provincial
Government, Gauteng
1999 (3) SA 594
(T);
Kilpert v Biutendach and Another
(1997) 18 ILJ 1296 (W);
McCulloc v Kelvinator
Group Services of SA
(Pty) Ltd (1998) 19 ILJ
1399 (W);
Minister of Correctional
Services and Another v Ngubo and Others
(2000)
21 ILJ 313 (N);
Hoffman v S.A. Airways
(2000) 21 ILJ 891 (W);
Claase
v Transnet Bpk en ân Ander
1999
(3) SA 1012
(T).
[24] I do not propose discussing
each of the cases in this judgement. I shall, nevertheless,
highlight certain implications which
emerge from some of them. The
cases of
Mondi Paper
,
Sappi, Coin Security
, and
Fourways Mall
have a common feature. In each of them there
was a strike and a High Court was approached for an interdict to
restrain
the striking workers from engaging,
generally speaking, in acts of intimidation, assaults and other
strike-related acts of misconduct.
In
Mondi
Nicholson J,
sitting in the High Court, Durban, discharged the rule nisi which
had been granted by Levinsohn J in regard to such
conduct.
Nicholson Jâs basis for discharging the rule was that the High
Court did not have jurisdiction to entertain such a
matter because
it was one of the matters in respect of which the Labour Court had
exclusive jurisdiction.
[25] In coming to the above
conclusion Nicholson J relied, inter alia, on the provisions of secs
69, 157 and 158 of the Act. He
also relied at 90D on the
circumstances as creating the
âjurisdictional milieuâ
indicating that the case belonged in the Labour Court. The effect
of the judgement was that, if employees engaged in certain criminal
acts and other acts of misconduct in furtherance of a strike, the
only court with jurisdiction to grant relief in respect of such
acts
is the Labour Court. In
Sappiâs
case the Eastern Cape
High Court was approached by an employer for relief similar to that
in the Mondi case and in similar circumstances.
The question
whether the High Court had jurisdiction was also raised. Expressing
general agreement with Nicholson Jâs conclusion
in
Mondi
,
Nepgen J concluded that a High Court did not have jurisdiction in
respect of such a matter. King DJP, as he then was, reached
the
same conclusion in the Coin Security matter.
[26] Two issues, which
also raise the question of the overlap in jurisdiction between the
High Courts and the Labour Court, which
did not arise in the
Mondi,
Sappi
and
Coin
Security
cases, arose in two later cases.
The one concerns a situation where there is no strike but employees
engage in acts of intimidation
and assault against either their
employer or the management or one or more of their co-employees in
order to resolve an employment
or labour dispute or in order to put
pressure on the employer to agree to certain demands. The question
that arises in such a
case is: Is it the High Court or the Labour
Court that has jurisdiction to grant the employer an interdict or
similar relief in
such a case or do the two Courts have concurrent
jurisdiction?
[27] This question arose in
Minister of Correctional Services and Another v Ngubo and Others
(2000) 21 ILJ 313 (N)
. That was a matter in which certain
employees of the Correctional Services Department, who were employed
in a prison in Pietermaritzburg,
objected to the appointment of a
certain official of the department as the provincial commissioner of
the department in KwaZulu-Natal
and they demanded her removal from
that position. In furtherance of their demand, the employees in that
case engaged in acts of
assault and intimidation and physically
removed the official from her office. The Minister, the employer,
and, the official concerned,
approached the High Court in
Pietermaritzburg and sought an interdict against such employees in
respect of such acts. Levinsohn
J, before whom the matter came,
concluded that the High Court did have jurisdiction.
[28] The basis of Levinsohn Jâs
judgement was that the purpose of the conduct of the employees was
â
not to resolve a dispute in respect of any matters of mutual
interest between employer and employee
â (see 318J - 319. At
318B he said that in order for the Labour Court to have exclusive
jurisdiction in respect of a matter,
âthere must be a direct
relationship between the matter or the dispute before it and a
particular relevant aspect and objective
of the LRA.â
The
learned Judge continued in the next sentence:
âA mere indirect
and incidental one will not suffice.â
Levinsohn J said at
318E that the intention of the employees in that case was
âejecting
[the official concerned] from her post as Provincial Commissioner
and causing her to go back to Pretoria. They also
sought to
intimidate Buthelezi and Strydom to achieve similar ends.â
He
then went on to say:-
âNone of the alleged actions, in my view,
falls into any category connected with a particular objective of the
LRA. To my mind
what is disclosed is unruly and intimidating
conduct of an unlawful nature.â
[29] I do not propose expressing
a view on the correctness or otherwise of the conclusion on
jurisdiction that Levinsohn J reached
in that case. If, however, it
is correct that the conduct of the employees was not connected in
any way with any of the objectives
of the Act, this would be
inconsistent with the Act which gives the purpose of the Act as
being to, inter alia,
âadvance...
labour peace...â
(my emphasis). Sec 1 goes on to state that such purpose will be
advanced by fulfilling the primary objects of the Act. In sec
1 (c)
one of the primary objects of the Act is given as the provision of
âa framework within which employees and their trade unions,
employers and employerâ organizations can-
(i)
collectively bargain to
determine wages, terms and conditions of employment
and other matters of mutual
interest;
(ii)
....â
[30] In sec 1 (d) (iv) the Act
gives the promotion of
âthe effective resolution of labour
disputesâ
as one of the primary objects of the Act. The
conduct of the employees concerned undermined labour peace. The
effective resolution
of disputes contemplated in sec 1 (d) (iv)
obviously refers to lawful effective resolution of disputes. The
conduct of the employees
concerned clearly ran contrary to such an
objective. If the conclusion to which Levinsohn J came is a correct
reflection of our
law, then there considerable jurisdictional
overlap.
[31] There is another issue that
would arise on the facts in the Ngubo matter if the applicant for
the interdict was the official
concerned and not the employer. That
is: Would the Labour Court have had jurisdiction to grant her relief
or would it have lacked
jurisdiction on the basis that there was no
employer- employee relationship between her and her
intimidators/attackers? Would
the Labour Court have had to conclude
that the court with jurisdiction was the High Court? In other words
would what is clearly
a labour dispute have had to go to the High
Court simply because of the lack of an employer-employee
relationship?
[32] The other question which
raises the issue of the overlap of jurisdiction between the Labour
Court and the High Courts which
did not arise in the
Mondi, Sappi
and
Coin Security
cases concerns the court which a party
should approach for relief against strikers where the party is not
the employer or ex-employer
of the strikers and the strikers are
employed by, for example, a neighbouring business but their conduct
in furtherance of their
strike is prejudicial to such party. The
next question concerns the nature of the conduct which would entitle
a party to institute
court proceedings. For example can such a
party institute proceedings against strikers in the Labour Court
despite the absence
of an employer-employee relationship or must
such party, because of the lack of such relationship, institute
proceedings in a High
Court?
[33] This issue arose in the
Fourways
matter. Edgars Stores Ltd (
âEdgarsâ
)
operated one of its shops at the
Fourways Mall
Shopping
Centre where it was a tenant. It also operated another shop at The
Avenues Shopping Centre in Springs. It was a tenant
in that Centre,
too. Certain employees of Edgars in the two shops were members of
the South African Commercial, Catering, and
Allied Workers Union
(
âSACCAWUâ
). A wage dispute arose between Edgars and its
employees. Prior to the commencement of a protected strike following
upon such dispute,
Edgars obtained an order from the Labour Court
against
SACCAWU
and another union. In terms of the order
members of the two unions employed by Edgars in the two shops were
interdicted from,
inter alia, intimidating and assaulting employees
employed by Edgars, blocking entrances to Edgarsâ premises,
intimidating and
assaulting customers of Edgars and interfering with
employees and customers entering and or leaving Edgarsâ premises.
[34] After a protected strike by
members of the two unions employed in the two shops had commenced on
the 28
th
September, the owner of the Fourways Mall
Shopping Centre, which was Edgarsâ landlord in respect of its shop
situated at the
Fourways Mall Shopping Centre and the owner of the
other centre at Springs who was Edgarsâ landlord in respect of its
shop in
that centre, complained that the members of the two unions
were engaging in acts such as obstructing vehicles coming in and out
of the shopping malls either belonging to the landlords, tenants or
customers or members of the public, interfering with such vehicles,
assaulting, intimidating, threatening, harassing or interfering
with, employees of the landlord or of the landlordsâ tenants
or
the public. They also complained about the strikers being within a
radius of 500 metres from the shopping malls. They applied
to the
High Court, Witwatersrand Local Division, for an order interdicting
the strikers from engaging in such acts and from being
present
within 500m from the shopping malls.
[35] The question arose whether or
not the High Court had jurisdiction in respect of the matter or
whether only the Labour Court
had jurisdiction. Claassen J, who
heard the matter, had regard to some of the cases to which reference
has been made but distinguished
all those that held that the Labour
Court had exclusive jurisdiction in those particular cases on the
basis that in those there
was an employer-employee relationship
whereas in the case before him such a relationship was absent (see
(1999) 20 ILJ 1008 (W)
at 1013I-J). He also said that those cases
concerned labour disputes and the case before him was, in his view,
not a labour dispute
(see 1012 E-I). Claassen J went on to say
that: -
(a)
the nature of the dispute
between the applicants and the respondents in the case before him
arose out of the law of delict as
well as the law of property and
that the applicants were seeking to protect their property from
unlawful infringement and /or injury
by the unionsâ members and to
protect their custom and business (at 1012 I-J);
(b) the applicants had
âa
fundamental, as well as constitutional, right to ply
their trade and enjoy their property to the full and
the law will
not tolerate the frightening off of customs by labour troubles,
reprisals, fear of unpleasantness, etcâ
(at
1012J-1013A);
(in this regard he relied on
Deneys Reitz v SACCAWU
1991 (2)
SA 685
(W) at 688 I-J and 692C and sec 22 and 25(1) of the
Constitution
. (see
1013A-B.)
(c) under the actio legis aquilae
an owner is granted a remedy in damages against another who has
unlawfully interfered with the
ownerâs free exercise of the full
rights of ownership; in this regard he relied on
Hefer v Van
Greuning
1979 (4) SA 952
(A)
at
958H; âAlternativelyâ,
he
said,
âthe ownerâs right would be protected under the law of
nuisance which is a branch of both delictual and property lawâ
(see 1013B-C).
[36] Claassen J found that the
dispute before him did not require
âexpertise in the field of
labour relationsâ
. He said the question was
âsimply
whether or not the (unionsâ) members unlawfully infringed upon the
applicantâs right to protect their custom and/or
property rightsâ
(see 1013D).
He expressed the view that the Act
âwas never
intended to deal with this kind of disputeâ (see 1013 E).
He
concluded that the High Court had jurisdiction to deal with the
matter and dismissed the point in limine regarding the jurisdiction
of the High Court.
[37] In relying on the absence of
the employer-employee relationship between the property owners and
the union members for the conclusion
that the matter before him was
one which the High Court and not the Labour Court had jurisdiction
to deal with, Claassen J may
have been correct. However, the very
purpose of the Act was to create courts which required knowledge,
experience and expertise
in labour law. For example sec 67(2),(6)
and (8) of the Act would appear to be applicable to the facts of the
case in Fourways.
[38] Sec 67 (2) reads:
âA
person does not commit a delict or a breach of contract by taking
part in-
(a) a protected strike or a
protected lock-out; or
(b) any conduct in contemplation
or in furtherance of a protected strike or a protected lock-out.â
Sec 67(8) provides:
âCivil
legal proceedings may not be instituted against any person for-
(a) participating in a protected
strike or a protected lock-out; or
(b) any conduct in contemplation
or in furtherance of a protected lock-out.â
Sec 67(6) reads:
âThe
provisions of subsection (2) and (6) do not apply to any act in
contemplation or in furtherance of a strike or a lock-out,
if that
act is an offence.â
A judge of the Labour Court would have
known these provisions and would have considered what their effect
was on the matter.
[39] Although the provisions of sec
67 (2) and (6) would not have presented any difficulty in the
granting of relief in respect
of acts of a criminal nature such as
intimidation, assaults and damage to property, they may well have
presented a difficulty in
respect of any order relating to acts
which were not of a criminal nature such as the chanting, toi-toying
and demonstrating in
which strikers may have engaged in furtherance
of their protected strike in the vicinity of the landlordsâ
properties. In the
absence of any provisions in a statute or
ordinance to the contrary, such acts do not constitute criminal
offences. In terms of
sec 67(2) such acts, when performed in
contemplation or in furtherance of a protected strike, do not
constitute delicts. In terms
of sec 67(6) such acts enjoy immunity
from a challenge by way of civil legal proceedings.
[40] The acts of toi-toying,
chanting, demonstrating and the carrying of placards in the vicinity
of the employer to whom a strike
is directed are part of picketing
which is contemplated by the provisions of sec 69 and yet this was
not considered in Fourways.
Strikers are also entitled to speak to
members of the public to seek to persuade them to support their
strike by not having any
business dealings with the employer(s)
against whom the strike is directed and yet this also was not
considered in Fourways. The
latter point raises the question of
when such speaking to members of the public would constitute
unlawful interference with members
of the public coming to the
shopping mall in a case like
Fourways.
An order which
interdicts strikers from interfering with members of the public
coming into the mall may be too vague-quite apart
from the fact that
it may have no legal basis when regard is had to the provisions of
sec 67 (2) ,(6) and sec 69 of the Act.
[41] At least some of the conduct of
which the property owners complained in Fourways is the type of
conduct which could legitimately
be included in a picketing
agreement or picketing rules provided for in sec 69. Such rules are
enforceable as between the parties
to the dispute giving rise to the
strike. If there is a breach of such picketing agreement or rules, a
dispute about such breach
is required in terms of sec 69(9) to be
referred first to the CCMA for conciliation (sec 69(1))and, if that
fails to produce a
settlement, to the Labour Court for adjudication
(sec 69(11)). By virtue of the provisions of sec 157 (1) only the
Labour Court
has jurisdiction to adjudicate such disputes. However,
in so far as landlords or property owners such as were involved in
Fourways
cannot approach the Labour Court for relief on the basis
that there is no employer-employee relationship between them and the
strikers,
the result may well be that proceedings may have to be
instituted in two separate superior courts for virtually the same
acts which
are committed by the same people in the same place and at
the same time. This could lead to a situation where judges of two
different
courts of the same status become involved in the
adjudication of virtually the same conduct committed by the same
party at the
same time with the inherent risk that the two courts
may give conflicting judgements. This runs contrary to the very
purpose of
developing a certain and coherent system of law. It is
also totally unacceptable in that it is not cost-effective.
[42] To compound the problem, if
there were to be an appeal against each of the two judgements of
these two courts, such appeals
would go to two different appeal
courts of the same status, namely, the Labour Appeal Court and the
Supreme Court of Appeal. If
the two appeal courts were to give
conflicting judgements, and there was no constitutional issue to be
taken to the Constitutional
Court, the result would be an
intolerable one. There is no justification for any of this. The
dispute resolution system applicable
to all employment and labour
disputes needs to be streamlined as far as possible.
[43] If the problem of jurisdiction
is not resolved by way of legislative intervention, one result may
be that, when an employer
who is faced with a protected strike
realises that the Labour Court will not grant certain relief, he can
arrange for his landlord
to approach, not the Labour Court, but a
High Court in the hope that the High Court will grant such relief.
In that event the
High Court, not having the advantage of the
specialised knowledge, experience and expertise in labour law
required by the Act of
judges of the Labour Court, may grant an
order which completely undermines the process of collective
bargaining which is one of
the fundamental pillars of the Act. The
way to avoid this difficulty is to have legislation which will
ensure as far as possible
that all such matters, if they have to go
to a superior court, go to the Labour Court.
[44] In terms of the principles of
the law of contract an employer is entitled in law to terminate an
employee's contract of employment
either on notice or summarily
where the employee has committed a material breach of the contract
of employment. If the employee
believes that the dismissal
constitutes a repudiation of the contract of employment (e.g because
he has not committed a material
breach of the contract of employment
justifying summary dismissal), he may either accept the repudiation
which would then bring
the contract to an end and claim such damages
as he may suffer as a result of such repudiation or he may reject
the repudiation
and hold the employer to the contract. In this
event the employee could also institute action in the High Court for
damages for
wrongful dismissal. In fact he could even institute
action or bring an application in the High Court for specific
performance on
the basis that the dismissal is unlawful or wrongful.
In such a case the employee's complaint about the dismissal need
not be
that the dismissal was unfair. It needs to be that the
dismissal was wrongful or unlawful or invalid. By virtue of sec
77(3) of
the BCEA it appears that that kind of action can be
instituted in the Labour Court too.
[45] Under the Act the employee
could, irrespective of whether he regards the dismissal as a
repudiation or not but, provided he
regards it as an unfair
dismissal, refer the dismissal dispute to a council with
jurisdiction or to the CCMA in terms of sec 191
for conciliation
and, thereafter, to arbitration if conciliation fails to produce a
settlement. If the employee sought or was awarded
compensation under
the Act for unfair dismissal, such compensation would be subject to
the limitations of sec 194.
Jacot-Guillarmod v Provincial
Government, Gauteng
1999 (3) SA 594
(T)
is a case where the
employer and the employee concluded a fixed term contract of
employment of five years but the employer terminated
it before it
could run its full term. The employee regarded this as a
repudiation of the contract of employment but accepted the
repudiation and sued for damages arising therefrom which consisted
of the salary he would have been paid for the balance of the
term.
[46] The employer filed a special
plea taking the point that the High Court did not have jurisdiction
to deal with such a claim
and that the Labour Court had exclusive
jurisdiction to deal with such a matter in the light of sec 157 (1)
of the Act. An exception
to the special plea was filed. The Court,
per Le Roux J, held at 600G that this was not a matter in which the
Labour Court had
exclusive jurisdiction. Le Roux J accordingly held
that the High Court had jurisdiction. The basis of this conclusion
was that
the matter was one of a simple enforcement of a contract of
employment. He said in effect that there was no provision in the
Act
that such a matter fell within the exclusive jurisdiction of the
Labour Court. He also relied at 600E-F on sec 195 of the Act.
Sec
195 provides thus:-
âAn order or award of compensation made in
terms of this chapter is in addition to, and not a substitute for,
any other amount
to which the employee is entitled in terms of any
law, collective agreement or contract of employmentâ.
Le Roux
J held at 600 D-F that this showed that
âthe Legislature had no
intention whatsoever of infringing the right of a High Court to hear
any ordinary common-law action in
connection with a contract of
employment.â
[47] Le Roux Jâs judgement was
delivered before sec 77(3) of the BCEA came into operation. The
latter section does not improve
the situation in any event. The
availability to an employee of an action for damages or compensation
in the High Courts and the
Labour Court based on the common law when
there has been a dismissal which he regards as a repudiation and
also the availability
to him of a claim for compensation under the
Act either in the Labour Court or the CCMA based on unfair dismissal
in circumstances
where sec 194 of the Act limits compensation
creates the unacceptable situation that, depending on the forum
chosen, and the cause
of action relied upon, the amounts that may be
awarded by the different courts may well be substantially different.
In the
Jacot-Guillamod
case, the employee stood a chance of
being awarded more than two million rand in compensation or damages
in the High Court. If he
had instituted proceedings in the CCMA or
the Labour Court, based on an unfair dismissal claim, subject to
what sec 195 of the
Act means, his compensation may have been
limited to a lesser amount in accordance with the provisions of sec
194 of the Act.
[48] This means that, if the
complaint is that the dismissal is wrongful or unlawful, that matter
may either go to a High Court
or the Labour Court (sec 77(3) of the
BCEA) and will not be competent to be dealt with in terms of the
dispute resolution process
applicable to unfair dismissal disputes
under the Act. If the complaint is that the dismissal is unfair
(even if it may be lawful),
then a High Court has no jurisdiction to
entertain it but it is competent to be dealt with in terms of the
unfair dismissal dispute
process of the Act. However, even that the
complaint is that the dismissal is unfair does not necessarily mean
that the Labour
Court has jurisdiction. This is so because,
depending on the reason alleged by the employee as the reason for
dismissal, a dispute
about the fairness of a dismissal may be
required to be referred to either the CCMA, or, a council with
jurisdiction, for arbitration,
or, to the Labour Court, for
adjudication (sec 191 read with sec 157(5)).
[49] The Constitutional Court also
has its share of jurisdiction as a court of first instance in
dismissal and other employment
and labour disputes. It would have
jurisdiction as a court of first instance where the dismissal is
challenged on the basis that
it is inconsistent with the
Constitution. This is so because sec 167(6) of the Constitution
contemplates that either national
legislation or the rules of the
Constitutional Court must allow direct access to the Constitutional
Court when it is in the interests
of justice to do so and if the
Constitutional Court grants leave therefor. An example of a case
in which a dismissal is challenged
on the basis that it is
inconsistent with the Constitution would be one where it is alleged
that the reason for dismissal is unfair
discrimination based on
religion, colour, race, gender or sexual orientation. In such a
case the complaint would be that such
dismissal is inconsistent with
the provisions of sec 9(1), (3) and (4) of the Constitution.
[50] A dismissal the unfairness of
which is based on grounds that it is inconsistent with sec 9 (1),
(3) and (4) of the Constitution
can be said to constitute an
automatically unfair dismissal as defined in sec 187(1)(f) of the
Act. Such a dismissal dispute
may be referred to the CCMA or a
council with jurisdiction for conciliation. If, attempts at
conciliation fail, the employee may
refer it to the Labour Court for
adjudication in terms of sec 191(5) (b) (i) of the Act. In fact an
employee may institute proceedings
in a High Court and then go to
the Constitutional Court with or without first going to the Supreme
Court of Appeal. Although the
dispute would be an employment or
labour dispute, it could proceed through the ordinary courts and
reach the Constitutional Court
without receiving the attention of
the Labour Court and this Court. Although such an employee may, in
terms of sec 167(b) of the
Constitution or in terms of the rules of
the Constitutional Court, approach the Constitutional Court for
leave to have direct access
to it, this should not present any
difficulty in practice because in all probability the Constitutional
Court will very rarely
grant leave for a matter to be brought
directly to it (without such matter having been dealt with by
another court first).
[51] Another problem which arises
from the fact that we have different courts having jurisdiction in
respect of employment and labour
disputes in general and dismissal
disputes in particular is that it
is possible for a party to bring
proceedings in a High Court and challenge a dismissal on the grounds
that it is unlawful or unconstitutional,
and, simultaneously,
initiate proceedings in the CCMA but have such proceedings stayed
pending the final outcome of the proceedings
in the High Court. If
the party is not satisfied with the outcome of the proceedings in
the High Court, such a party may appeal
to the Supreme Court of
Appeal. If the party is still unhappy with the outcome of the
proceedings in that court, he could proceed
to the Constitutional
Court. If the party is again unhappy with the outcome of the
proceedings in the Constitutional Court, such
party could then
return to the CCMA to pursue processes in terms of the Act which
might lead to the Labour Court, and, to this
Court. As there would
hopefully no longer be any constitutional issues since they may have
been exhausted during the first round
of litigation which culminated
in the Constitutional Court, the appeal in this Court would be the
last stage of very protracted
proceedings. Obviously this entire
process would have been very costly to all parties and to the State
and would have enormously
delayed finality in the dispute.
[52] Other disputes which I think
present similar problems as dismissal disputes are disputes about
suspensions, transfers, promotions,
demotions, change of terms and
conditions of employment of employees and the eviction of employees
from their employerâs accommodation.
I have already quoted the
provisions of item 2 above. Item 2(1)(b) of schedule 7 to the Act
refers to unfair labour practice disputes
which take the form of
"
unfair conduct on the part of the employer relating to the
promotion, demotion, or training of an employee or relating to the
provision
of benefits to an employee.
" Item 2(1)(c) refers
to an unfair labour practice dispute which concerns the unfair
suspension of an employee or any other
disciplinary action short of
dismissal in respect of an employee. The unfair labour practice
provision is silent about disputes
relating to transfers and a
failure or refusal to appoint a job applicant.
[53] It is clear from the
provisions of item 2 that, if an employee's complaint is that the
employer has acted unfairly in not promoting
him at all or in not
promoting him to a certain level or if the complaint is that the
employer has acted unfairly in demoting the
employee or in
suspending the employee, a forum is provided for which will deal
with such a dispute ultimately if conciliation
is not successful.
That is the CCMA or a council with jurisdiction. The method by
which such a dispute will be put to an end
is arbitration. The
Labour Court will have no jurisdiction to entertain and adjudicate
such disputes under the Act.
[54] In terms of sec 77(3) of the
BCEA the Labour Court may have jurisdiction to determine a case
involving the demotion of an employee
where the compliant is that
the demotion is unlawful or is a repudiation of the employeeâs
contract. A High Court would also
have the same jurisdiction as the
Labour Court in such a case. It is also arguable that, where the
complaint is that the employer's
failure to promote an employee, or,
to appoint a job applicant to a higher position or to a higher post,
or, where the complaint
is that his conduct in suspending an
employee is unlawful, a High Court would have jurisdiction to deal
with such a dispute and
the CCMA and a council would have no
jurisdiction. This makes our law in this regard complicated and
highly technical. Anyone who
has to advise either an employee or an
employer on the question of which court or forum has jurisdiction in
regard to such matters
and under what circumstances it has or does
not have jurisdiction would have to be alive to the various
possibilities and appreciate
the various fine distinctions in the
jurisdictions of the various fora.
[55] The challenge may well be
based on constitutional grounds. In the latter event what I have
already said above about dismissals
which are challenged on
constitutional grounds applies subject to the possibility that the
Labour Court will also have jurisdiction.
The effect of this is that
disputes about promotions, demotions and suspensions can go either
to the CCMA (or councils with jurisdiction),
the Labour Court, or
the High Courts or the Constitutional Court. An employee would be
advised that, if a dispute about promotion,
demotion or suspension
is taken to the CCMA or a council with jurisdiction as an unfair
labour practice dispute, it will be arbitrated
upon and there will
be no right of appeal, but only a right of review in case the
arbitrator's award goes against him whereas,
if he challenges the
promotion, demotion or suspension as unlawful in the High Court or
the Labour Court under sec 77(3) of the
BCEA, there will be a right
of appeal subject, of course, to leave being granted. This is an
invitation at forum shopping.
[56] With regard to a dispute
concerning the transfer of an employee from one place of work to
another or from one department to
another it appears that the one
route for it is that it can go to a High Court, and, thereafter, to
the Supreme Court of Appeal
if an appeal ensues after a decision of
the High Court. It may end in the Supreme Court of Appeal if there
is no constitutional
issue that may qualify it to be taken to the
Constitutional Court. If there is, the matter may end up in the
Constitutional Court.
It appears that another possible route for
such a dispute is that it may be brought to the Labour Court on the
basis of the provisions
of sec 77(3) of the BCEA. If this happened,
an appeal against the decision of the Labour Court would lie to this
Court. If there
is no constitutional issue to qualify such matter to
be taken to the Constitutional Court, the decision of this Court
would be
contemplated by the Act to be final. The fact that such a
dispute can be taken either to a High Court and ultimately to the
Supreme
Court of Appeal and that it can also be taken to the Labour
Court and ultimately to this Court creates the possibility that two
appeal Courts of the same status may develop conflicting
jurisprudence on the law relating to such disputes with no court
having
power to resolve such. That fact also means that these
disputes too, which are clearly employment/labour disputes may go
through
the ordinary courts to the Constitutional Court without the
Labour Court or this Court or any of the specialist institutions
specially
created to deal with labour disputes dealing with them.
[57] With regard to disputes about
transfers, I note that sec 15 of the Public Service Act, 1994
regulates transfers and secondments
in the public service. Sec 13
of the same Act deals with appointments, transfers and promotions on
probation in the public service.
Sec 14 deals specifically with the
transfers of employees and officers within the public service. Sec
11 deals with appointments
and the filling of posts in the public
service. I note also that sec 6 of the Employment of Educators Act,
1998 (Act No 76 of
1998) regulates appointments, promotions and
transfers of educators. Sec 7 has provisions relating to
appointments and the filling
of posts. Section 8 also deals with
transfers. Sec 20 deals with the suspension of educators.
[58] There are also disputes
relating to a change of an employee's terms and conditions of
employment. Under the Act such disputes
can be the subject of
strikes or lock-outs because sec 64(4) and (5) of the Act would
apply to such a dispute. Sec 64(4) and (5)
read:
"
(4) Any employee who or
any trade union that refers a dispute about a unilateral change of
terms and conditions of employment to
a council or the Commission in
terms of subsection 1(a) may, in the referral, and for the period
referred to in subsection (1)(a)-
(a) require the employer not to
implement unilaterally the change to terms and conditions of
employment; or
(b) if the employer has already
implemented the change unilaterally, require the employer to restore
the terms and conditions of
employment that applied before the
change.
(5) The employer must comply
with a requirement in terms of subsection (4) within 48 hours of
service of the referral on the employer.
"
If an employer fails to comply with
a union's requirement in terms of sec 64(4)(a) or (b), the Labour
Court has jurisdiction to
order the employer to comply with it
because non-compliance therewith is non-compliance with the
provisions of sec 64(5) of the
Act and sec 158(1)(b) gives the
Labour Court power to order compliance with any provision of the
Act. A High Court has jurisdiction
to determine a matter relating to
a change of terms and conditions of employment of an employee where
it is alleged that such change
constitutes a breach or a repudiation
of the employeeâs contract of employment or is in any way
unlawful. By virtue of the provisions
of sec 77(3) of the BCEA the
Labour Court may have concurrent jurisdiction with High Courts in
regard to such disputes.
[59] With regard to disputes
relating to the eviction of an employee from the employer's
accommodation, it does not appear that
the Labour Court would have
jurisdiction to deal with such a matter unless it can be said that:
(a) sec 77(3) of the BCEA confers
such jurisdiction or (b) such
eviction constitutes a unilateral change of terms and conditions
of employment of such employees
as contemplated in sec 64(4), or (c)
such eviction can be said to fall within the ambit of an "
unfair
act or omission
...
relating to the provision of benefits to an
employee
" as contemplated in item 2(1)(b) of schedule 7.
There is little doubt that a High Court would have jurisdiction to
deal
in one way or another with an eviction of an employee from the
employerâs accommodation.
[60] It frequently happens in
eviction cases that the eviction of an employee from the employerâs
accommodation follows upon a
dismissal of the employee and that
employee's right to such accommodation is dependent upon his
continued employment. In such
a case it may be that the dismissal
dispute has to be dealt with by the Labour Court or the CCMA but
that the employer brings eviction
proceedings in a High Court
either before the proceedings in the Labour Court or CCMA are
completed or after they have been completed.
In that case what is
essentially one dispute may well get split between two courts.
[61] What is unacceptable with this
state of affairs in regard to dismissal disputes in general is that
different superior courts
have jurisdiction to deal with dismissal
disputes as courts of first instance depending on the grounds on
which dismissals are
challenged. In addition the CCMA and councils
have their share of jurisdiction in this regard. Another reason
why this state
of affairs is unacceptable is that employment and
labour matters can proceed and indeed do proceed to the High Courts
and the
Supreme Court of Appeal when, in the Labour Court, this
country has a superior court of equal status to the High Courts and,
in
this Court, has an Appeal Court of equal status to the Supreme
Court of Appeal which are courts that were specifically created to
deal with employment and labour disputes that needed to go to court.
[62] There are at least four very
recent examples of employment and labour cases which have been taken
to High Courts and even to
the Supreme Court of Appeal and were
dealt with by those courts which have not been reported. The one is
Greathead Brian Courtney v
SACCAWU case no 290/98
(Supreme
Court of Appeal). In this case a trade union and an employer
concluded an agency shop agreement. An agency shop agreement
is
provided for in sec 25 of the Act. In terms of this agreement the
employer was to make certain deductions from the salaries
and wages
of employees who were not members of the union. One of the employees
instituted proceedings in the Witwatersrand Local
Division to
challenge the lawfulness and constitutionality of such agency shop
agreement. This occurred despite the fact that in
terms of sec 24(6)
read with ss(3),(4) and (5) of the Act disputes about the
interpretation or application of part B of the Chapter
under which
agency shop agreements fall are required to be referred to
arbitration. This occurred despite the fact that the Labour
Court is
the court which has power in terms of sec 158(1)(b) to order
compliance with any provisions of the Act where any party
complains
that provisions of the Act have not been complied with and sec
157(1) provides that the Labour Court has exclusive jurisdiction
in
respect of any matter which in terms of the Act is required to be
referred to it for adjudication. The High Court dismissed
the
application. There was an appeal to the Supreme Court of Appeal. The
Supreme Court of Appeal handed down its judgement and
upheld the
appeal on grounds other than constitutional grounds. It does not
appear from the judgement that the question whether
the High Court
had jurisdiction was considered.
[63] Another matter is that of
Lowe
v Commission
on Gender Equality Appeal case no A5019/00 which
was an appeal to a Full Bench of the Witwaterand Local Division.
That matter ultimately
turned on the question whether there had been
a lawful termination of the contract of employment of the employee
by the employer.
The judgement of the Full Bench was handed down on
the 15
th
December 2000. Another case is that of
Coetzee
v Comitis &
others case no 6239/00
where the Cape of
Good Hope Provincial Division had to deal with the constitutionality
of certain rules enforced by the employer
(a football club) relating
to the release of an employee (a soccer player) from such club to be
able to go and be employed by (play
for) another employer (another
club). The judgement in this regard was handed down on the 6
th
December 2000. The last of these matters is
NAPTOSA & others
v Minister of Education (Western Cape)
and others, case no
4842/99 which was also a judgement of the Cape Provincial Division.
It was handed down on the 20
th
October 2000. It related,
inter alia, to the question whether or not the employer had been
entitled not to afford certain employees
(who were teachers) certain
employment benefits.
[64] This analysis reveals the
existence of a state of affairs which provides fertile ground for
the unacceptable practice of forum-shopping.
A further reason why
this state of affairs is unacceptable is that it creates uncertainty
in the law because the various courts
have different jurisdictions
and powers in relation to virtually the same dispute. This may also
produce confusing jurisprudence
in the field of employment and
labour law. It is conceivable that the Labour Court and this Court
may decide that a particular
dispute falls outside their
jurisdiction and the High Courts and the Supreme Court of Appeal may
also decide that the dispute falls
outside of their jurisdiction.
Which court is to resolve such impasse?
[65] One of the deficiencies in the
dispute resolution dispensation of the old Act which the
stakeholders in the labour relations
field sought to bury when they
negotiated the new dispute resolution dispensation under the Act
was that that system was uncertain,
costly, inefficient and
ineffective. Through the new system with its specialist
institutions and courts which are run by experts
in the field, the
stakeholders and Parliament sought to ensure a certain, efficient,
cost-effective and expeditious system of resolving
labour disputes.
The fact that the High Courts also have jurisdiction in employment
and labour disputes completely undermines
and defeats that very
important and laudable objective and thereby undermines the whole
Act.
[66] To my mind, to allow this
state affairs to continue is illogical and makes no sense,
especially as our country does not have
an abundance of human and
financial resources. As a country we should use our resources
optimally. There should only be a single
hierarchy of courts which
have jurisdiction in respect of all employment and labour matters.
If such disputes are required to
be dealt with by a superior court
of first instance, the appropriate court to deal with them is the
Labour Court. If they are
not required to be dealt with by a
superior court, they should be dealt with by one or other of the
specialist institutions which
have been specially created by the
legislature to deal with employment and labour disputes.
[67] In the light of all the above
I am of the opinion that serious consideration should be given by
Parliament, the Minister for
Justice and Constitutional Development,
the Minister of Labour and Nedlac to taking a policy decision to the
effect that all such
jurisdiction as the High Courts may presently
have in employment and labour disputes be transferred to the Labour
Court and all
such jurisdiction as the Supreme Court of Appeal may
have in employment and labour disputes be transferred to the Labour
Appeal
Court. The objective would be that there would only be one
superior court - the Labour Court - which has jurisdiction to deal
with employment and labour matters or disputes as a court of first
instance and that appeals from such court would only lie to the
Labour Appeal Court as a court of final appeal except in respect of
constitutional issues where a further appeal would lie to the
Constitutional Court.
[68] Statutory provisions which
confer jurisdiction on the High Court to deal with employment and
labour disputes such as sec 157(2)
of the Act and sec 77 (3) of the
BCEA should be amended so as not to give High Courts jurisdiction in
employment and labour matters.
This would be irrespective of the
nature of the issues involved in such matters. In that event High
Courts would no longer have
any jurisdiction in employment and
labour disputes and they would be left to give their attention to
other matters. This would
enhance the capacity of the High Courts
to deal with other disputes falling outside of the employment and
labour field such as
commercial matters and those relating to crime
which continue to cause our society grave concern.
[69] If the above is done,
prospects of achieving the laudable objective of an efficient,
expeditious and cost-effective dispute
resolution system in
employment and labour disputes will be enhanced. In that way, too,
our limited resources will be properly
utilised. The problems I
have highlighted need urgent attention by the government and all
relevant stakeholders. For this reason
I will make an order at the
end of this judgement directing the Registrar of this Court to send
a copy of this judgement to all
relevant authorities for their
attention.
Merits of the Appeal
[70] One of the grounds on which
the appellant seeks to challenge the validity of his dismissal is
that the first respondent needed
the approval of the Premier of the
North-West Province, who is the fourth respondent in this matter,
before it could dismiss him.
He alleged in his founding affidavit
that such approval had not been obtained. This submission was based
on the provision of
sec 67(2) of the Municipal Ordinance no 20 of
1974 of the Province of the Cape of Good Hope which, it was common
cause between
the parties, applied to the appellant and the first
respondent. Sec 67(2) reads thus:
"
No council shall terminate
the services of its town clerk, whether upon notice, or without
notice, except with the approval of the
Administrator who, before
granting such approval, may and, if he is so requested in writing by
the town clerk in any case where
an inquiry in terms of section 69
has not been held, shall act in terms of section 200 and cause an
investigation to be undertaken
into the circumstances surrounding
the proposed termination of the services of the town clerk.
"
[71] It was common cause between
the parties during argument that the powers of the administrator in
the ordinance were transferred
by proclamation to the fourth
respondent as Premier of the North-West Province. The fourth
respondent did not oppose the review
application in the court a quo.
He also did not file any affidavit. Only the first respondent
opposed the review application.
It also opposed the appeal. In
response to this ground of attack on its decision to dismiss, the
first respondent stated in its
answering affidavit that it had
approached, "
the duly appointed delegate of the Premier of
the North West Province for approval as envisaged
in
provisions of section 67(2)...â
The first respondent went on
to say that the "
delegate
" was a Member of the
Executive Council for Local Government, Housing, Planning and
Development, North West Province, Mr D.
Africa. In support of these
allegations the first respondent relied on the contents of a letter
of the 3
rd
July which was addressed to Mr Africa by the
âtown secretaryâ.
That letter was annexed as annexure G2
to the first respondentâs answering affidavit. Mr Africa
responded by way of a letter
dated the 28
th
July 1998
which was received by the first respondent on the 3
rd
August 1998 which was annexed as annexure G3 to the first
respondent's answering affidavit.
[72] The contents of the letter of
the 3
rd
July do not support the first respondentâs
allegation that it thereby approached Mr Africa for approval to
dismiss the appellant.
The letter appears to simply have been a way
of keeping Mr Africa informed of developments at the council on the
particular matter.
After informing Mr Africa of the resolution
taken by the first respondent at its meeting of the 29
th
June 1998, the author of the letter ends by saying: "
We hope
you will find this in order
". He did not say, for
example,: "
Please confirm that you approve of the aboveâ
or anything to that effect. In fact the second sentence of Mr
Africa's reply confirms that he also understood the letter as
intended
to keep him informed. There he wrote: "
I have
noted the contents of your letter and appreciate the fact that your
council has kept me informed of developments in relation
to this
sensitive issue.
"
[73] In the light of the above I
find that not only did Mr Africa not provide approval but also that
he was not approached for
approval. This is apart from the fact
that the approval that was required was that of the fourth
respondent and not that of Mr
Africa. In so far as the first
respondent sought to suggest that the fourth respondent had
delegated his authority to give approval
to Mr Africa, this has not
been shown. Indeed it has not even been shown that the fourth
respondent would have been entitled
to delegate such authority. The
further contention that such approval was no longer required is
without any basis in law and falls
to be rejected.
[74] In dealing with this ground of
review, the Court a quo found that it was not necessary for the
first respondent to seek the
fourth respondent's approval because
the decision to dismiss an employee must be taken by the employer
and not by somebody else.
This is not wholly accurate. Although
the authority or power to dismiss an employee vests with the
employer of such employee,
the parties may in their contract of
employment take that power away from the employer and confer it on a
third party in certain
circumstances. A good example of this would
be where the parties provide either in their contract of employment
or in their dispute
procedure that, if the employer believes that
the employee is guilty of misconduct justifying his dismissal, a
disciplinary inquiry
must be convened which would be chaired by an
independent person who would decide on the guilt or otherwise of the
employee as
well as on whether such employee should be dismissed and
both parties would abide by such third party's decision. As an
employer
and an employee in the private sector may reach agreement
along those lines, it is also competent for Parliament to include a
provision
in a statute along such lines in respect of the State as
an employer or in respect of a parastatal organisation and its
employees.
In this case the provisions of sec 67(2) of the
ordinance precluded the dismissal of the appellant in the absence
of the fourth
respondent's approval.
[75] It was also argued on behalf
of the first respondent both in the Court a quo and before us that
the provisions of sec 67(2)
of the ordinance were in conflict with
the provisions of the Act in that the Act gave the power to dismiss
to an employer whereas
the ordinance gave it to the fourth
respondent. The Court a quo accepted this argument. However, with
respect, this argument
is without merit. There is nothing in the
Act which precludes the kind of arrangement to which I have referred
in the preceding
paragraph. The argument ought to have been
rejected. The Court a quo was also persuaded that, in so far as the
approval of the
fourth respondent was required, same had been
provided. In this regard the Court a quo had regard to the contents
of the letter
from Mr Africa that has already been referred to
above. As I have already said, the contents of that letter do not
justify such
a finding.
[76] The next question is what the
effect is of the first respondent's failure to show that the
appellant's dismissal was effected
with the fourth respondent's
approval. In my judgement the effect is that the first respondent
had no authority to dismiss the
appellant and that the dismissal is
unlawful, invalid and of no effect in law and falls to be set aside.
With regard to costs Counsel
for the respondent submitted that, even
if the appellant was successful in its appeal, no order should be
made as to costs because
the appellant could have taken this matter
to arbitration where the parties could have handled it without
incurring legal costs
because, generally speaking, lawyers do not
have the right of audience in such arbitration in terms of the Act.
I think the answer
to this lies in the fact that the dispute which
the appellant brought to the Court a quo was not a dispute about the
fairness of
a dismissal as envisaged in sec 191(1) of the Act but it
was whether the dismissal was invalid and fell to be set aside on
review.
For that reason the matter could not be dealt with by way of
arbitration. In my view the appellant is entitled to its costs.
Order
[77] In the result I make the
following order:-
[1] The appeal is upheld and the
first respondent is ordered to pay the costs of the appeal.
[2] The order of the Court a quo is
set aside and the following one is substituted for it:-
â(a) The first
respondent's dismissal of the applicant is hereby set aside.
(b) The first
respondent is ordered to pay the
applicant's costs of the application.â
[3] The registrar
is directed to send a copy of this judgement
to:-
(a) the Minister of
Justice and Constitutional Development.
(b) the Minister of
Labour.
(c) the National
Economic Development and Labour Council, and to specifically draw
their attention to paragraphs 6 to 69 of this
judgement.
----------------------------
RMM ZONDO
JUDGE PRESIDENT
Save for refraining from expressing
a view on paragraphs 6 to 69 of the judgement which has been
prepared by the Judge President,
I agree with the Judge Presidentâs
judgement.
----------------------------
E,L Goldstein
Acting Judge of Appeal
I agree with the judgement prepared
by the Judge President.
----------------------------
D.M. Davis
Acting Judge of Appeal
Appearances:
For the Appellant: Mr N. Cloete
Instructed by: Neville Cloete &
Company
For the respondent: Mr E. Van
Graan
Instructed by: Du Plessis Viviers
Date of hearing: 7
th
November 2000
Date of Judgement: 28 February
2001