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[2012] ZALAC 32
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Randwater v Stoop and Another (JA 78/11) [2012] ZALAC 32; [2013] 2 BLLR 162 (LAC); (2013) 34 ILJ 579 (LAC) (8 November 2012)
Reportable
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA 78/11
In the matter between:
RAND WATER
............................................................................................................
Appellant
and
JOHAN STOOP
..............................................................................................
First
Respondent
JOHANNES BUCKLE
...............................................................................
Second
Respondent
Date of hearing: 22 August 2012
Date of Judgment:08November 2012
Summary: -Contract of employment-
Employees dismissed for fraud and employer incurred losses- Employer
claims damages in terms of
s77 (3) of the of the
Basic Conditions of
Employment Act, 75 of 1997
-
-Employees raised point
in
limine
that Labour Court lacks jurisdiction
-
Labour Court
has jurisdiction when the issue in dispute is related to, linked to,
or connected with an employment contract- Employer
entitled to claim
damages from employees
Employees’ point
in limine
dismissed with costs.
CORAM: WAGLAY AJP, ZONDI AJA and MUSI
AJA
JUDGMENT
WAGLAY AJP
Introduction
[1] This is an appeal against the
finding by the Labour Court that it had no jurisdiction to determine
the appellant’s damages
claims against the first and second
respondentsbecause the claims did not concern a contract of
employment, or a contract of employment
as envisaged by s77 (3) of
the Basic Conditions of Employment Act, 75 of 1997 (hereafter the
“BCEA”), and that the
Labour Court, in any event, had no
jurisdiction to entertain a claim for damages against the
respondents.
Background facts
[2] The Respondents are former
employees of the appellant. They were charged with and found guilty
of misconduct by an independent
chairperson at an internal
disciplinary hearing.
[3] The findings of the disciplinary
hearing included a finding that the respondents’ misconduct ‘…
caused R7.8
million losses to Rand Water [the employer].’
[4] The respondents believing their
dismissals to be both substantively and procedurally unfair referred
it as a dispute to the
Commission for Conciliation, Mediation and
Arbitration (CCMA) for conciliation. Conciliation failed to resolve
the dispute. The
Appellant then successfully applied to the Director
of the CCMA to transfer the respondents’ claims for
adjudication to the
Labour Court under the provisions of s191(7) of
the Labour Relations Act no.66 of 1995(hereafter the LRA).
[5] The first respondent served the
referral for his unfair dismissal claim in terms of the LRA upon the
appellant and in turn,
the appellant instituted a counter-claim
against him for damages in terms of the BCEA. Before the second
respondent could refer
his unfair dismissal dispute to the Labour
Court, the appellant instituted a claim for damages against the
second respondent in
terms of the BCEA and the second respondent then
instituted a counter-claim for unfair dismissal in terms of the LRA.
[6] Although the respondents applied
independently to challenge their dismissals in the Labour Court, the
disputes have now been
consolidated. In both cases, the respondents
claim that their dismissals were unfair and seek reinstatement. The
appellant, in
turn has instituted a claim for damages against them
for breach of contract.
The pleadings against the first
respondent
[7] The particulars of the
counter-claim against the first respondent (applicant in the
pleadings) read as follows:
’
25.
The Applicant, acting personally, and the Respondent, duly
represented by its Acting General Manager, concluded a written
contract
of employment on or about 23 August 1999. A copy of the
written employment contract is annexed marked "A".
26.
It was an implied,
alternatively
, a tacit term of the contract
of employment that:
26.1
the Applicant had the duty to perform his services diligently and in
the exercise of the care and skill which can be reasonably
expected
of a person with their knowledge and experience;
26.2.
the Applicant had a duty to act in good faith, including the duty to
work honestly, to desist from any form of nepotism or
favouritism, to
act within their authority and to comply with the Respondent's
procurement rules and policies, as well as
section 57
of the
Public
Finance Management Act, 1999
;
26.3.
in his relationship with suppliers, including SWR Projects CC, the
Applicant undertook in addition to the aforesaid duties
not to engage
in (to) any form of collusion or unfair business practices and/or
promote honesty and integrity and to look after
and act in the best
interests of the Respondent.
The
Applicant, as a senior employee employed by the Respondent, owed the
Respondent a fiduciary duty of loyalty, trustworthiness
and good
faith.
As
a senior employee, the Applicant was charged with the financial
responsibility of approving payments to contractors to the
Plaintiff, including SWR Projects CC.
For
the period 2002 to 2007, SWR Projects CC was the approved supplier
and was awarded several tenders by the Respondent from
which it
derived the right to perform various projects for the Respondent.
Pursuant
thereto, SWR Projects CC duly represented, entered into various
joint venture agreements with the Respondent, duly represented.
The
joint venture agreements were all concluded in Johannesburg.
It
was an implied,
alternatively
, a tacit term of each of the
joint venture agreements that:
the
parties to the joint venture would act in good faith in relation to
each other and/or act in such a manner so as to advance
the joint
venture for their mutual benefit;
31.2.
SWR Projects CC would claim only such monies from the Respondent as
were due and owing;
SWR
Projects CC would support any claim for payment from the Respondent
with vouchers or proof of expenditure in the case of
the joint (Jo)
venture;
31.4.
SWR Projects CC would:
31.4.1.
charge the correct rate for services rendered; and/or
31.4.2.
charge only for work done; and/or
charge
the agreed or usual, or a reasonable price for goods and services
rendered.
In
each case mentioned above, the Applicant was, as part of his duties,
to approve invoices submitted by SWR Projects CC for work
that it
had done and for which it was entitled to payment.
The
Applicant was obliged, in terms of his contract of employment, to
ensure that SWR Projects CC submitted invoices in compliance
with
its obligations set out in paragraph 31 above and/or to approve only
those invoices for which SWR Projects CC was entitled
to be paid for
actual work done in accordance with the agreed,
alternatively
the usual,
further alternatively
the reasonable rates.
During
the period 13 May 2002 to August 2007, the Applicant and SWR
Projects CC conspired to defraud the Respondent by inducting
the
Respondent's Accounting Department to effect payments to SWR
Projects CC for sums that the Applicant and SWR Projects CC
knew
were not owing and/or due and payable to SWR Projects CC. In
amplification thereof:
SWR
Projects CC submitted invoices to the Respondent, represented by
the Applicant for work not done and/or which reflected
overcharges
and/or the incorrect rate and/or charges for work duplicated and/or
charges contrary to the tender documents and/or
without proper
supporting documents ("the defects").
The
Applicant approved payments in respect of the invoices contemplated
in paragraph 34.1.above knowing of the defects.
Induced
by these actions, the Respondent paid SWR Projects CC the sum of R8
091 607.16 for which the Respondent was not liable.
Alternatively
,
even if fraud cannot be proved by approving the payments to (20) SWR
Projects CC, the Applicant breached his contract of employment
with
the Respondent in one, more, or all of the following ways:
By
failing to perform their services diligently, and in the exercise
of due care.
By
failing to act in the best interests of the Respondent.
By
failing to comply with the Respondent's procurement policies.
By
failing to act in good faith.
By
acting in collusion with SWR Projects CC.
The
Applicant accordingly materially breached all the terms of the
contract of employment pleaded above.
Had
the Applicant performed his contractual obligations, the Respondent
would not have suffered any loss.
Consequently,
as a result of the Applicant's breach of the employment contract,
the Respondent suffered damages in the sum of
R8 091 607.16 to put
it in a position it would have been in had the Applicant complied
with his employment duties.
The
Applicant has admitted causing the Respondent loss in the sum of
R748 096.40.
In
the premises, the Applicant is liable to the Respondent in the sum
of R748 096.40.
As
a result of the Applicant's conduct, the Respondent paid SWR
Projects CC the sum of R8 091 607.16.when such sums were not owing.
In
the premises, as a result of the Applicant’s breach, as
aforesaid, the Respondent has suffered damages, in the amount
of R7
343510.70’ [my underlining]
The pleadings against the second
respondent
[8] In the case of the second
respondent although the counter-claim
1
is not framed by the appellant in
identical fashion, it is similar to the counter-claim filed against
the first respondent. Again,
the appellant asserts that the second
respondent breached his contract of employment in the same manner as
the first respondent.
The allegation is made that as a result of the
breach of the employment contract, the appellant suffered damages.
[9] There is, in the second
respondent’s pleading, one major difference: an alternative
claim, in delict, is pleaded as follows:
‘
6.2
Its jurisdiction to order the Respondent to pay the Applicant's
damages arises from two independent sources:
6.2.1
Firstly,
section 77
(3) of the
Basic Conditions of Employment Act,
1997
,
And
6.2.2
Secondly, the Court's inherent powers empowers, under section
158(1)(a)(iv) of the Act, which allows the Labour Court to make
any
appropriate order, including an award of compensation in any of the
circumstances contemplated by the Labour Relations Act,
1995 (Act);
By
virtue of the Court's broad powers under the Act, the Court has
powers to entertain delictual action against employees instituted
by
the employer.
6.3
The Court's power to grant relief against the Respondent arises from
its broad and inherent powers under the Act, which permit
it to award
damages in delict.’
The exception
[10] The respondents raised a point
in
limine
against the appellant’s counter-claim. The point
in
limine
was that the Labour Court had no jurisdiction to entertain
a claim for damages.
The judgment of the Court
a quo
[11] The point
in limine
was
argued and the Labour Court (Bhoola J) handed down the following
judgment:
‘
[1]
…..
“
[2]
The applicants contend that the counterclaim is a delictual claim in
that it is based on fraud. Christie, states: "Fraud
is a delict,
and it is no less a delictbecause it is connected with the making of
a contract or takes the form of a fraudulent
misrepresentation
inducing a contract" [
Christie:
The Law of Contract in South Africa
3
rd
ed
(LexisNexis Butterworths, Durban, 1996) at 239]
.
The respondent denies that this is a delictual claim and asserts that
it arises from contract, and that this Court in any event
[has]
concurrent jurisdiction with the HighCourt to determine the
counterclaim.
[3]
Section 77(3) of BCEA provides that this 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]
The clear and ordinary meaning of "concerning'' is "about;
regarding; on the subject of' as was held in
University
of the North v Franks and Others
[
[2002]
8 BLLR 701
(LAC) at 711C],
I
agree with Mr Ackermann's submission that it means "involving"
or "having a proximity to" which requires that
the
application or claim should have a direct bearing or effect on
the
employment contract. This, he submitted, will apply to terms and
conditions relating to termination of the contract, the
interpretation
of the contract or specific performance. In the
present instance, the applicants are one step removed from the
situation and a
determination of the allegations of fraud will have
no bearing on an employment contract which is no longer in existence.
This
Court is not called upon to determine whether the applicants did
defraud their employer or not, whether the contract should be
terminated because of such conduct. The counter claim moreover has no
relationship to the claim arising from the substantive and
procedural
fairness of the dismissal, nor will it involve the same evidence.
[5]…
[6]
For these reasons, the counter claim cannot be said to concern the
contracts of employment of the applicants and this Court
accordingly
lacks jurisdiction. Therefore, the objection in limine is upheld with
costs.’
The appeal
[12] The appellant raised a number of
grounds of Appeal, but I believe it may be more appropriate to deal
with the issues raised
by the respondents as not all of the issues
raised by them were dealt with by the Court
a quo
.
[13] The first issue raised by the
respondents in support of their point
in limine
was that the
Labour Court, had no jurisdiction to entertain the appellant’s
counter-claims as these were essentially pure
delictual claims and
not claims linked to, or connected with the employment contract that
at one time existed between the appellant
and the respondents.
[14] The point
in limine
was
argued on the pleadings without any evidence being tendered. On the
pleadings, it is demonstrably clear that the counter-claims
arose
directly from the same set of facts that resulted in the respondents’
dismissal. The counter-claims pleaded are that
the respondents
committed fraud whilst in the employ of the appellant and as such
they breached their duty of good faith, axiomatically,
the committing
of fraud during their employment breached the essence of the contract
of employment that existed between them.
[15] The Court can only test the issue
of jurisdiction, in the absence of any evidence, with reference to
the claims as pleaded.
The Constitutional Court in the matter of
Gcaba v The Minister for
Safety and Security and Others
2
said:
‘
75.
Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in Chirwa[supra] and not the substantive merits of
the case. If
Mr Gcaba’s case were heard by the High Court, he would have
failed for not being able to make out a case for
the relief he
sought, namely review of an administrative decision. In the event of
the Court’s jurisdiction being challenged
at the outset (
in
limine
),
the applicant’s pleadings are the determining factor. They
contain the legal basis of the claim under which the applicant
has
chosen to invoke the Court’s competence
.”
3
[16] The counter-claims are pleaded as
arising out of and related to the contract of employment that existed
between the appellant
and the respondents.Whether the claimswere one
in delict I shall deal with later, but the fact that the claims arose
out of a contractual
relationship is what is pleaded. Furthermore,
the alternative claims as pleaded is based on the allegations that
even if the appellant
fails to discharge its
onus
of proving that the respondents
committed fraud, the respondents would have been found to have
breached their contracts of employment
by not acting diligently or in
good faith or in the appellant’s best interest. These claims
therefore,
prima facie
are claims that are contractual.In
Sappi Novoboard (Pty) Ltd v
Bolleurs,
4
it
was saidthat:
‘
It
is an implied term of the contract of employment that the employee
will act with good faith towards his employer and that he
will serve
his employer honestly and faithfully :
Pearce
v Forster & others
(1886)
QB 356
at 359;
Robb
v Green
(1895) 2 OB 1 at 10;
Robb
v Green
(1895) 2 QB (CA) at 317;
Gerry
Bouwer Motors (Pty) Ltd v Preller
1940
TPD 130
at 133;
Premier
Medical & Industrial Equipment Ltd v Winkler & others
1971
(3) SA 866
(W) at 867H. The relationship between employer and
employee has been described as a confidential one (
Robb
v Green
at 319). The duty which an employee owes his employer is a fiduciary
one “which involves an obligation not to work against
his
master’s interests” (
Premier
Medical & Industrial Equipment Ltd v Winkler
at 867H;
Jones
v East Rand Extension Gold Mining Co Ltd
1917 TH 325
at 334). If an employee does “anything incompatible
with the due or faithful discharge of his duty to his master, the
latter
has a right to dismiss him”:
Pearce
v Forster
at 359.
In
Gerry Bouwer Motors (Pty) Ltd v Preller
it was said at 133: “I do not think it can be contended that
where a servant is guilty of conduct inconsistent with good
faith and
fidelity and which amounts to unfaithfulness and dishonesty towards
his employer the latter is not entitled to dismiss
him.” The
conduct of an employee in receiving a commission which arises out of
the employment relationship without the knowledge
of his employer
constitutes a lack of faith:
Boston
Deep Sea Fishing & Ice Co v Ansell
(1888) [787]
39 Ch D 339
(CA) at 363 -4;
Levin
v Levy
1917 TPD 702
at 705;
Gerry
Bouwer Motors (Pty) Ltd v Preller
at 133.’
[17] The contractual link to the claim
is also secured by the fact that in our common law every employee
undertakes to exercise
due and reasonable diligence in the discharge
of the duties he is contracted to discharge.
5
[18] The counter-claims as pleaded not
only raise the issue of fraud committed by the respondents but
expressly aver that the damages
allegedly suffered by the appellant
were a result of the respondents’ failure to serve it honestly
and faithfully and by
their failure to exercise due and reasonable
diligence. In the circumstances I am satisfied that the
counter-claims were based
on the contract of employment between the
parties.
[19] The second ground raised by the
respondent was that even if the claims were based on an employment
contract,appellant should
pursue its claims against the respondents
in the civil courts, not in the Labour Court, as the Labour Court
should only deal with
disputes involving unfair dismissals and unfair
labour practice.
[20] The above ground was misconceived
in light of s77(3) of the BCEA, in terms of which the appellant
instituted its claims against
the respondents. S77(3) provides as
follows:
‘
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.’
[21] Generally the Labour Court and
this Court have held that if an issue in dispute relates to; is
linked to; or connected with
an employment contract then the Labour
Court does have jurisdiction in terms of s77(3) of the BCEA to
entertain such a dispute.
See
Penta
Publication (Pty) Ltd v Schoombieand others;
6
Vorster v Real Africa Corporate
Services (Pty) Ltd,
7
and;Mafihla
v Govan Mbeki Municipality;
8
[22] In the matter of
Tsika
v Buffalo City Municipality,
9
the court in my view properly held
that the Labour Court had wide powers in terms of the BCEA and that
in terms of s77A(e) the Labour
Court may make any order that it
considers reasonable on any matter concerning a contract of
employment in terms of s77(3). The
court added that such orders may
include an order for specific performance; an award of damages or an
award of compensation.
10
[23] This Court in the matter of
Langeveldt v Vryburg
Transitional Local Council and Others,
11
said that the right of a dismissed
employee, who believes his dismissal to constitute a repudiation of a
contract of employment,
to accept repudiation and claim damages, or
reject the repudiation and hold the employer to the contract may by
virtue of s77(3)
of the BCEA be enforced in the Labour Court. This
was reinforced in the recent matter of
South
African Football Association v Mangope
12
where the LAC upheld a claim for
payment of damages consequent to the repudiation of an employment
contract.Also in the matter of
the
University
of the North v Franks and Others,
,
13
this Court said that the termination
of a contract of employment and the terms and conditions upon which
the termination took place
are matters concerning an employment
contract.
[24] A claim for damages arising out
of a breach of a contract of employment was also upheld by the Labour
Court in
SA Music Rights
Organisation Ltd v Mphatsoe
14
.
In this matter, the Court upheld the employer’s right to claim
damages from the employee who failed to work his full notice
period.
[25] A similar argumentas raised by
the respondents in the Court
a
quo
was raised at the SCA
in the matter of
Makhanya v
University of Zululand.
15
The
Court there noted that:
‘…
The
jurisdictional challenge is curious because claims for the
enforcement of contracts are commonplace in the high courts. Some
eight years ago it was argued before this Court – in
Fedlife
Assurance Ltd v Wolfaardt
[2002
(1)SA 49(SCA)]- that claims for the enforcement of contracts of
employment had been excluded from the jurisdiction of the
high courts
by the Labour Relations Act 66 of 1995 (“LRA”) but that
argument was rejected, and is not sought in this
case to be revived.
And if there is any residual doubt as to whether a high court has the
power to consider such a claim it is
put to rest by section 77(3) of
the Basic Conditions of Employment Act 75 of 1997 (“BCEA”),
which was enacted after
the LRA, and which makes it perfectly clear
that the high courts have not been divested of their ordinary
jurisdiction to enforce
contracts of employment (
the
section confers equivalent jurisdiction on the Labour Court also to
consider such claims
).’
(my
emphasis and footnote omitted)
[26] One of the corollaries to a
breach of contract is a claim for damages or specific performance.
[27] Respondents’ further
argument was that if s77(3) of the BCEA allowed for claims arising
out of a contract of employment
to be adjudicated by the Labour
Court, then on a proper interpretation of s77(3), the jurisdiction of
the Labour Court was limited
to interpretation and enforcement of the
terms of a contract of employment.
[28] According to the respondents, the
use of the phrase in s77(3) that the concurrent jurisdiction of the
Labour Court with the
Civil Courts to hear and determine ‘…any
matter concerning a contract of employment, irrespective of any basic
condition
of employment constitutes a term of that contract…’meant
that the Labour Court can do no more than interpret the terms
of the
contract of employment in a dispute even, when the term(s) in dispute
do not form part of the basic conditions of employment.
[29] Extending the above argument the
respondents submitted (which submission was accepted by the Court
a
quo
) that the meaning to be
attached to the word “concerning” in the phrase
“concerning a contract of employment”
was, as held in the
University of theNorth v
Franks and Others
16
– “
about”; regarding
and “on the subject of”. These meanings the respondents
say mean “involving” or
“having proximity to”and,
as such, the argument continued,because of the meaning ascribed to
the word “concerning”
as set out above, the Labour
Court’s jurisdiction in relation to a contract of employment is
limited to enforcement of the
terms of the employment contract and
does not include adjudication of allegation of fraud, especially
where the contract has been
terminated. The respondents added that
the interposing of the contractual terms relating to the service
provider made the appellant’s
claim “one step removed”
from a contract of employment.
[30] Firstly, theargument that s77(3)
of the BCEA only permits the Labour Court to interpret the terms of
an employment contract
and enforce it, is neither reasonable nor
logical. This is demonstrably clear when regard is had to s77A(e) of
the BCEA which sets
out the remedy the Labour Court may grant in
respect of a dispute referred to it in respect of a dispute arising
out of an employment
contract.
17
Secondly, the meaning ascribed to the
word “concerning” in the relevant phrase in s77(3) is
acceptable save that attributing
“having proximity to”,
to the word “concerning” cannot be correct. The word
“concerning” while
conveyinga cause and effect does not
convey a meaning that some causes and effects are acceptable and
others notor that there has
to be a direct or indirect linkbetween
the contract of employment and the claim.
[31] Furthermore, the only reason for
interposing the service provider in the particulars of claim appears,
prima facie
,
to make plain how the respondents’ general duties would apply
to their contracts of employment. Additionally, the fact that
when
the claims were instituted the respondents were no longer in an
employment relationship is of no consequence. The cancellation
of a
contract does not prevent a party from claiming damages for a breach
of that contract. The right had accrued before the termination
of the
contract and as such the appellant is entitled to enforce its right
irrespective of the termination of the contract that
created that
right
18
.
The fact that at the commencement of the action no employment
relationship existed is of no consequence to the issue of
jurisdiction
because the claim had accrued before such termination.
It was also erroneous of the Court
a
quo
to find that fraud
generally cannot amount to a breach of contract; the Court
a
quo
further ignored the
alternative claim. In any event I fail to appreciate what the phrase
“one step removed” from contract
of employment is
intended to mean. A claim arises from a contract or it does not, one
cannot have degrees of connection between
a claim and a contract.
[32] A further argument raised by the
respondents in its point
in
limine
was that the BCEA
does not confer jurisdiction over a contractual claim for damages
that are illiquid because the Labour Court principally
is a Court of
equity.
[33] The Labour Court is both a Court
of law and a Court of equity. What this implies is that in matters
before it, it should apply
the appropriate principles. Sometimes it
must apply both these principles on an issue: for example when
determining whether to
grant costs in a matter referred to it, but
where the pleadings involve a contractual claim and no reliance is
placed on unfair
behaviour, principles of law must apply to determine
the dispute. In the present case, the Labour Court would do exactly
what the
High Court would do in adjudicating the damages claim. The
Labour Court, like the High Court, will sit as a Court of law and not
as a Court of equity. Its jurisdiction is concurrent to the
jurisdiction of the High Court.
[34] Also the fact that the claim is
illiquid does not make it a claim which the Labour Court cannot
adjudicate. There is simply
no basis to assert that liquidity is a
pre-requisite for the Labour Court to entertain a contractual claim
19
.
[35] The respondents also averred
that, the appellants’ claim is a delictual one and therefore
cannot be entertained in terms
of s77(3) of the BCEA. Once again the
respondents are wrong. There is no doubt that fraud is a delictbut
the fraud alleged in the
pleadings is connected to the contract of
employment between the appellant and the respondents. This was not a
fraud committed
against the appellant by persons unconnected to
it.The allegation is that the respondentsabused their positions as
servants of
the appellant. They committed fraud against their
employer by abusing the positions they held as employees.
[36] Finally, the respondents
submitted that the BCEA was partisan towards employees and that the
s77 of the BCEA only contemplated
claims by employees against their
employers and not
vice versa.
There is simply no warrant for
interpreting the BCEA in a partisan manner. The BCEA benefits both
employers and employees. This
is clear from a number or provisions.
For example, the rules relating to deductions from employees’
salaries and the rules
relating to notice pay are for the benefit of
both parties. Providing employees with minimum conditions of
employment creates industrial
peace which is to the benefit of both
parties. The BCEA was designed to promote the right to fair labour
practice which is available
to everyone employees and employers
alike. If the employee can claim damages for breach, so too can the
employer, to suggest otherwise
is to argue that this section is
unconstitutional.
[37] In my view, the respondents
either ignored or failed to appreciate the fact that unfair labour
practice and unfair dismissal
claims are regulated by the LRA and not
the BCEA and that while their claims are under the LRA, the
appellant’s counter-claims
are under the BCEA and are
permissible.
Conclusion
[38] A teleological approach to
interpretation of the BCEA is clearly appropriate, but this approach
does not and cannot licence
an Alice in Wonderland interpretation.
Words must mean what they ordinarily mean not what we want them to
mean:
S v Zuma and Others;
20
National Coalition for Gay and
Lesbian Equality and others v Minister of Home Affairs and Others;
21
Daniels v Campbell and Others;
22
Investigating Directorate; Serious
Economic Offences and Others v Hyundai Motor Distributions (Pty) Ltd
and Others In re: Hyundai
Motor Distributors (Pty) Ltd and Others v
Smit NO and Others;
23
and Hoffman v South African
Airways
24
.
[39] I am satisfied that s77(3) read
with s77A (e) favours an interpretation bringing within its ambit the
type of claim instituted
by the appellant in this matter as;
The word “
concurrent
”
in s77 (3) places the Labour Court in exactly the same position as
the High Court with the same powers and authority
in relation to
matters concerning a contract of employment.
The last part of the s77(3) provides
the Labour Court with jurisdiction irrespective of whether any
basic condition of employment
constitutes a term of the employment
contract. This demonstrates that the Labour Court has jurisdiction
over any claim as long
as it involves a contract of employment
The words “
concerninga
contract of employment
” mean about or in connection with
an employment contract. The pleaded claim clearly falls within this
categorisation.
The words “
any matter
”
in s77(3) are broad and the literal interpretation does not limit
the claims, in relation to a contract of employment,
to a specific
category. Damages, both liquid and illiquid, are included.
[40] The argument that the
counter-claim is not competent because it bears no relation to the
claim arising from substantive and
procedural fairness of the
respondents’ dismissal is also misconceived. Generally a
counter-claim is not required to be linked
or related to the claim in
convention, so long as the Court has jurisdiction to entertain it, it
can be raised. In this matter
however, the counter-claims arise from
the same facts that gave rise to the dismissal, so the question of
leading totally unrelated
evidence does not arise. The difference
only relates to the fact that the dismissal dispute will be
entertained in terms of the
LRA and the Court will determine it on
the basis of its equity jurisdiction whereas the same facts with
regard to the counter-claim
will be entertained in terms of the BCEA
and the Court will determine it on basis of its Law jurisdiction.
[41] In the circumstances, the point
in limine
raised by the respondents should have been
dismissed.
[42] In the result, I make the
following order:
The appeal is upheld with costs;
The Order of the Court
a quo
is replaced with the following order:
‘
The
respondents’point
in
limine
is
dismissed with costs.’
__________________
Waglay AJP
I agree
_________________
Zondi AJA
I agree
_________________
Musi AJA
APPEARANCES:
FOR THE APPELLANT: Adv F.A. Boda
Instructed by Cliffe Dekker
HofmeyerInc
FOR THE FIRST RESPONDENT: Adv M. F.
Ackerman
Instructed by Len Dekker &
Associates
FOR THE SECOND RESPONDENT: Adv J. T
Delport
Instructed by CouzynHertsog&HorakInc
1
I
shall refer to both the appellant’s claim against the second
respondent and its counter-claim against the first respondent
as
“counter-claims”
2
[2009]
12 BLLR 1145
(CC) at para[75].
3
See
also
SA Maritime Safety Authorityv. Mckenzie
[2010] 5 BLLR
488
(SCA) at para 7.
4
(1998)
19 ILJ 784 (LAC) at para 7.
5
See
in this respect
Wallace v Rand Daily Mails
1917 AD 479
at
482.
6
[2001]
2 BLLR 199
(LC) here the Labour Court held that an employer was
entitled to enforce a confidentiality clause in an employment
contract even
after termination of the employment relationship.
7
[2003]
2 BLLR 208
(LC)
8
[2005]
4 BLLR 334
(LC) here the Labour Court considered if there was a
breach in the termination of an employment contract, if so, the
relief that
should be granted.
9
[2009]
3 BLLR 272
(E).
10
Section
77A sets out the powers of the Labour Court to make orders and
provides that
‘…
the
Labour Court may make any appropriate order, including an order --
(e)
making a determination that it considers reasonable on any matter
concerning a contract of employment in terms of section
77(3), which
determination may include an order for specific performance, an
award of damages or an award of compensation.’
11
[2001]
5 BLLR (LAC).
12
As
yet unreported case no JA 13/11delivered on 7 September 2012.
13
[2002]
8 BLLR 701
(LAC) at para29.
14
[2009]
7 BLLR 696
(LC).
15
[2009]
8 BLLR 721
;
[2009] 4 All SA 146
(SCA) at para 2.
16
[2002]
8 BLLR 701
(LAC) at 711 C.
17
See
footnote 11.
18
See
SAFA v Mangope
(supra) and
Crest Enterprises Ltd v
RycklofBeleggingsBpk
1972(2) SA 863 at 870 F-G where the Court
cited with approval what Salmond and Williams on
Contracts
,
2
nd
edition(1945) said at 566- ‘...every obligation
which has accrued due between the parties before the recission of
the contract,
and which creates a then existing cause of action
remains unaffected by the recission and can still be enforced’.
19
See
SAFA v Mangope
(Supra).
20
(1995)
4BCLR 401 (CC) at 412 especially at para 17 E-G.
21
2000
(2) SA 1
(CC) at para 25.
22
[2004] ZACC 14
;
2004
(5) SA 331
(CC) at para 19.
23
[2000] ZACC 12
;
2001
(1) SA 545
(CC) at paras 50 to 56.
24
2001
(1) SA 1
(CC) at para 42.