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[2007] ZALCCT 5
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Fraser v City of Cape Town (C638/2005) [2007] ZALCCT 5 (14 December 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C638/2005
In
the matter between:
KEITH
FRASER
Applicant
and
CITY
OF CAPE TOWN
Respondent
JUDGMENT
1.
The Applicant was employed by the
Respondent till his resignation on 30 January 2004.
Thereafter he referred an unfair
dismissal dispute to the South
African Local Government Bargaining Council, and a certificate that
that dispute was not resolved
was issued during June 2004. The
Applicant did not refer the dispute to the CCMA for arbitration in
the required period,
and his application for condonation in this
regard was refused by the CCMA.
2.
The Applicant then proceeded to refer a
dispute to this court on 6 October 2005 in terms of Section 77(3) of
the Basic Conditions
of Employment Act 75 of 1997. In his
statement of case he relies on the fact that:
The
Respondent wilfully and intentionally breached the terms and
conditions of the Employment Agreement and/or permitted its
representatives
and its employees to conduct themselves in such a
manner, that the Applicant was compelled to cancel and terminate the
agreement.
He alleges that he has
suffered damages and claims such damages. This is a claim in
contract and the Applicant does
not rely on the fairness or otherwise
of the Respondent’s conduct.
3.
By agreement between the parties argument
was addressed on 6 December 2007 on two issues, namely:
3.1
Whether the Applicant’s claim was
res
judicata
.
3.2
Whether the Applicant was entitled to claim
damages at all.
Jurisdiction
4.
Mr Brown on behalf of the Applicant relied
on the judgment of the Constitutional Court in
Chirwa
v Transnet Limited and Others
case
number CCT78/06, handed down on 28 November 2007 in contending that
this court does not have jurisdiction to entertain the
dispute and
that the Applicant was confined to the CCMA for his remedy, if any.
Mr Marinus relied on the judgment of the
Supreme Court of Appeal in
Boxer Superstores Mthatha and Another v
Mbenya
, case number 97/2006 handed down
on 31 May 2007. In
Boxer
the Supreme Court of Appeal confirmed that
An
employee may therefore sue in the High Court for a dismissal that
constitutes a breach of contract giving rise to a claim for
damages
(paragraph 5 iii of the judgment). This is consistent with the
judgment of the Supreme Court of Appeal in
Fedlife
Assurance Ltd v Wolfaardt
2002 (1) SA
49 (SCA).
5.
The crisp question therefore is whether the
Constitutional Court overruled the Supreme Court of Appeal in this
regard. I do
not think so.
Chirwa
dealt with whether an employee who was
dismissed by the State could approach the High Court for relief and,
if so, whether such
dismissal constituted administrative action.
The matter did not deal with a claim in contract or with the
provisions of S77
(3) of the Basic Conditions of Employment Act.
Accordingly the Supreme Court of Appeal decision in
Boxer
stands and it binds this court. This court would have
jurisdiction to entertain the claim of the Applicant unless the
defence
of
res
judicata
prevails and I shall now deal with it.
Res
Judicata
6.
Mr Brown contended that the fact that the
Applicant’s dispute to the CCMA has been finally decided, by
the refusal to grant
him condonation, has the consequence that his
claim has been extinguished.
7.
However, it is not necessary to decide this
point as Mr Brown has in argument referred me to paragraph 85 of the
judgment of Ngcobo
J, where the learned Judge said the following:
[85]
Ordinarily and as a matter of judicial policy, even if the
High Court had concurrent jurisdiction with the Labour Court
in this
matter, it should be impermissible for a party to initiate the
process in the CCMA alleging one cause of action, namely,
unfair
labour practice, and halfway through that process, allege another
cause of action and initiate proceedings in the High Court.
It seems
to me that where two courts have concurrent jurisdiction, and a party
initiates proceedings in one system alleging a particular
cause of
action, the party is bound to complete the process initiated under
the system that she or he has elected. Concurrent jurisdiction
means
that a party must make an election before initiating proceedings. A
party should not be allowed to change his or her cause
of action
mid-stream and then switch from one court system to another. In
effect, the applicant is inviting us to countenance such
a practice.
It is an invitation which, in my view, should be firmly rejected.
8.
Six judges of the Constitutional Court
concurred in the judgment of Ngcobo J. Although Ngcobo J refers
to a party not being
allowed to change his or her cause of action in
mid stream and then switch from one court system to another, it is,
with respect,
clear that this means that, once a party has made an
election to institute proceedings in one forum, he or she may not
thereafter
proceed in another forum, irrespective of whether the
proceedings in the first forum have been finalised or not.
Conclusion
9.
The Applicant is precluded from continuing
with proceedings in this Court as a consequence of the fact that he
had initially referred
a dispute arising out of the same facts to a
Bargaining Council having jurisdiction.
10.
Accordingly the court orders that:
10.1
The referral is dismissed.
10.2
Due to the novelty of the issue in question
and the fact that these proceedings were instituted long before the
decision of the
Constitutional Court in
Chirwa
,
no order as to costs is made.
__________________
NIEUWOUDT
AJ
DATE
OF HEARING:
6
December 2007
DATE
OF JUDGMENT:
14 December 2007
APPEARANCES
:
FOR
THE APPLICANT:
G Marinus
INSTRUCTED
BY:
Jan S De Villiers
FOR
THE RESPONDENT:
R Brown
INSTRUCTED
BY:
Herold Gie