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[2014] ZALCCT 27
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Norodien v Ajax Cape Town Football Club (Pty) Limited t/a Ajax Cape Town Football Club and Others (C72/2014) [2014] ZALCCT 27; (2015) 36 ILJ 472 (LC) (12 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
REPORTABLE
CASE
NO: C72/2014
In
the matter between:
RIYAAD
NORODIEN Applicant
and
AJAX CAPE TOWN
FOOTBALL CLUB
(PTY) LIMITED T/A AJAX
CAPE TOWN
FOOTBALL
CLUB First
Respondent
NATIONAL SOCCER LEAGUE
T/A
THE PREMIER SOCCER
LEAGUE Second
Respondent
SOUTH AFRICAN FOOTBALL
ASSOCIATION Third
Respondent
Heard: 13 February
2014
Delivered: 12 March
2014
Summary: The Labour
Court has no jurisdiction to adjudicate a dispute in which the
applicant has submitted that he is not an employee.
REASONS FOR JUDGMENT
Lallie
J
[1]
On 12 March 2014, I granted an order dismissing the applicant’s
urgent application. I further ordered the applicant to
pay the first
and second respondent’s costs including costs of two Counsel,
excluding the costs of 13 February 2014.
Reasons
for my judgment are provided below.
[2]
The applicant sought an order in the followings terms:
“
1.
Dispensing with the ordinary time limits and Court Rules relating to
service, condoning non-compliance with the said rules
and directing
that this Application be heard as one of urgency, in terms of Rule 8
of the Rules of the Honourable Court;
2.
Declaring that the Power of Attorney
annexed hereto marked “X” is
void
ab initio
, alternatively has lapsed,
further alternatively has been validly cancelled, and is of no force
or effect;
3.
Declaring that the Professional Footballers
Fixed Term Letter of Appointment dated 6
th
December 2013,together with Schedule 1 thereto, a copy of which
annexed hereto marked “y”, is
void
ab initio
and of no force or effect;
4.
Declaring that the Applicant’s
registration with the Second Respondent dated 17
th
December 2013, as appears from Annexure “Z” hereto, is
void ab initio
and of no force or effect;
5.
Directing the Second Respondent to cancel
the aforesaid registration;
6.
Directing that the Applicant is cleared to
join a club of his choice, and that he may be registered by the
Second Respondent to
play for such club upon compliance with the
Second Respondent’s other registration requirements;
7.
Ordering that the First Respondent pay the
costs of this Application on an attorney and client scale, save in
the event of any other
Respondents opposing this Application, and in
which event ordering the other Respondents who may oppose to pay the
costs of this
application, together with the First Respondent as
aforesaid, on the attorney and client scale, jointly and severally,
the one
paying the other to be absolved;
8.
Granting the Applicant such further and /or
alternative relief as the above Honourable Court may deem fit”.
[3]
The factual background of this matter is that at the tender age of 13
years the applicant made an application to join the Ajax
Cape Town
Youth Development Academy on 13 July 2008. He was assisted by his
mother who was his sole guardian to complete the standard
application
form. His application was successful and he commenced playing
football for the first respondent (“Ajax”)
in its amature
Youth Academy (“the academy”) on the same year.
[4]
The applicant submitted that he was furnished, for the first time,
with a copy of his application to join the academy and a
special
power of attorney on 23 November 2012. The documents were attached to
a letter he received from Mr Ari Efstathiou (“Efstathiou”),
the executive director of the first respondent in which he advised
him of his graduation from the Ajax Youth Development Program.
Dealing with prayer 2 of the notice of motion the applicant submitted
that the power of attorney does not appear to be initialed
on
the first page and does not appear to have been signed by both his
mother and himself where there are designed signature spaces
on the
second page. Their names are merely printed with the hand writing of
the same person in the space designated for signatures.
The absence
of their signatures renders the power of attorney, according to the
submission, not binding and invalid. Another ground
the applicant
sought to rely on is that the witness did not initial the first page,
and signed on the second page only. The applicant
expressed the view
that the power of attorney is either signed by one instead of two
persons as required in its content or is not
signed at all. It is not
the power of attorney he and his mother were required to sign. The
applicant does not rule out the possibility
that they did not sign a
power of attorney at all although the memories of both his mother and
himself have paled.
[5]
The applicant bases his further attack on the validity of the power
of attorney on the purpose for which it was used by
the first
respondent in that it circumvented his right to agree to his terms of
employment, particularly when he attained the age
of 18 years and
available to sign his documents. The applicant submitted that because
the power of attorney is invalid, his registration
with the second
respondent as a professional football player is also invalid as it is
based on the power of attorney.
[6]
The applicant stated unequivocally that he is not an employee. He
submitted that his contract of employment is dated 6 December
2013.
It is not signed by him but by Efstathiou, purporting to act both for
the second respondent and the applicant in terms of
the power of
attorney. Efstathiou accepted the terms of the contract on behalf of
applicant a day before the offer of employment
was made.
[7]
The first respondent submitted that this court lacks jurisdiction
over this matter because the applicant contended that he is
not an
employee. He may therefore not approach this Court as there is no
employment relationship. Both the first and second respondents
submitted that the jurisdiction of this Court is ousted by the
arbitration clause in the second respondent’s constitution
which is binding on the applicant and precluded the applicant from
approaching this Court before the second respondent’s
internal
remedies are exhausted.
[8]
This matter was heard on an urgent basis because the applicant had
fulfilled all the requirements of urgency. Although the first
respondent argued that the applicant had known of his desire to
launch this application for a while, delayed and therefore created
the urgency, I am satisfied that the applicant received the relevant
documents from the first respondent only 5 days before this
application was launched. He brought this application without undue
delay thereafter. In reaching the decision that the applicant
has
fulfiled the requirements for an interdict, I have considered the
averments by the first and second respondents that the applicant
has
an alternative remedy of referring this dispute to arbitration in
terms of the second respondent’s constitution which
ousts the
jurisdiction of this Court. I am not convinced that the arbitration
clause precluded this Court from determining the
issue of
jurisdiction and further issues should it become necessary.
[9]
The next determination to be made in this matter is whether this
Court has jurisdiction over this dispute when the applicant
has
unequivocally submitted that he is not an employee. The first
respondent has submitted that the answer to the enquiry should
be in
the negative. The second respondent argued along the same lines in
its further submissions on the issue.
[10]
For this Court to adjudicate a dispute, it requires the necessary
jurisdiction. Jurisdiction is the power or competence of
a court to
hear and determine an issue between parties. See
Gcaba
v Minister of Safety and Security
[1]
.
In
Muthusamy
v Nedbank Ltd,
[2]
it
was held that where the applicant contended that he was not an
employee, ‘he finds himself without a jurisdictional niche
of
the LRA’.
[11]
The applicant based his averment that he was not an employee on the
power of attorney he considers invalid, his contract of
employment
and the second respondent’s constitution and rules.
[12]
The applicant raised a number of arguments which were vehemently
opposed by the first and second respondents, to the effect
that even
if he approached this Court on the basis that he was not an employee,
it has the necessary jurisdiction to entertain
the present
application. Amongst the authorities he relied on, is the decision in
McCarthy
v Sundowns Football Club and Others
[3]
where
the applicant, a professional football player had concluded a two
year contract with the Sundowns Football Club (Sundowns)
which
required him to acquire a clearance certificate from Sundowns on its
termination. The contract further provided that at its
expiry,
Sundowns had an irrevocable option to renew it for a further two
years. The applicant approached this Court claiming that
he was a
'free agent’ at the expiry of the two year period and entitled
to the clearance certificate. He denied that the
renewal clause was
binding on him as he did not agree to it. The court assumed
jurisdiction although the contract of employment
between the
applicant and Sundows had expired.
[13]
In his argument that the McCarthy decision should be followed, the
applicant sought to rely, inter alia, on the following dictum:
‘
The
employment contract of professional footballers differs substantially
from the contracts which one finds with other employees.
In
particular, a professional footballer cannot resign during the period
of his contract of employment and take up employment with
another
club without agreement of his old club. If a professional footballer
leaves a club after the period of his contract of
employment, he
cannot simply begin playing for another club unless and until he is
provided with a clearance certificate by the
club that he leaves as
the NSL would not register the player without a clearance
certificate’.
[14]
The
McCarthy
decision is distinguishable in that in
considering the application before him, Waglay J took cognizance of
the fact that the applicant
was a 25 year old footballer as opposed
to a professional footballer who is under 23 for whom, in terms of
FIFA and NSL regulations
training and compensation fees may be
payable to clubs who contributed to the training of such player prior
to the age of 23. It
is common cause that the applicant is not 23
years old yet and training and compensation fees play a prominent
role in this matter.
[15]
In terms of the doctrine of
stare decisis
I am not compelled
to follow a decision of another Labour Court Judge. The reason I
decline to follow the
McMarthy
decision is that the material
facts which persuaded the court to assume jurisdiction are absent
from the matter before me.
[16]
The applicant argued that notwithstanding the reality that he is not
an employee, the current dispute arises from labour relations.
The
source of this court’s jurisdiction over his dispute is
therefore section 157 (2) of the Labour Relations Act 66 of 1995
(“LRA”) which provided as follows:
‘
(1)
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 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 is responsible’.
[17]
Provisions of section 157 were interpreted as follows in
Gcaba
(supra)
[4]
‘
[72]
Therefore, s 157 (2) should not be understood to extend the
jurisdiction of the High Court to determine
issues which (as
contemplated by s 157(1)) have been expressly conferred upon the
Labour Court by the LRA. Rather, it should be
interpreted to mean
that the Labour Court will be able to determine constitutional issues
which arise before it, in the specific
jurisdictional areas which
have been created for it by the LRA, and which are covered by s 157
(2)(a), (b) and (c).
[73]
Furthermore, the LRA does not intend to destroy causes of action or
remedies and s 157 should
not be interpreted to do so. Where a remedy
lies in the High Court, s 157 (2) cannot be read to mean that it no
longer lies there
and should not be read to mean as much. Where the
judgement of Ngcobo J in
Chirwa
speaks
of a court for labour and employment disputes, it refers to labour
and employment-related disputes for which the LRA creates
specific
remedies. It does not mean that all other remedies which might lie in
other courts, like High Court and Equality Court,
can no longer be
adjudicated those courts. If only the Labour Court could deal with
disputes arising out of all employment relations,
remedies would be
wiped out, because the Labour Court (being a creature of statute with
only selected remedies and powers) does
not have the power to deal
with the common law or other statutory remedies’
.
[18]
The applicant may therefore not rely on section 157 (2) and allege
that the present dispute arises from employment and labour
relations
because his case is that when he approached this court he was not an
employee. There was therefore, no employment as
envisaged in section
157 (2) (a). The dispute does not even arise from labour relations.
The term labour relations does not have
a wide interpretation as the
applicant argues that it has. The jurisdiction of this Court referred
to in section 157 (2) as enunciated
in
Gcaba (supra)
does not
extend to every dispute arising out of employment relations. It is
limited to those disputes for which the LRA creates
a remedy. The LRA
has not created a remedy for an applicant who approaches this Court
in the applicant’s circumstances alleging
that he or she is not
an employee. Jurisdiction is determined on the pleadings.
The averment that the applicant is
not an employee is not
insignificant. It is in the heart of the applicant’s
case. He sought to support it with
averments of the invalidity
of the power of attorney, his contract of employment, his
registration documents and the constitution
and the rules of the
second respondent.
[19]
I have considered the applicant’s argument that this Court
should exercise jurisdiction over this matter as it does in
dismissal
disputes which involve people who are no longer employees. This
argument loses sight of the fact that the LRA expressly
grants this
Court jurisdiction over such dismissal disputes. When dismissed
employees approach this Court they do so because they
claim relief in
terms of the LRA.
[20]
The weakness of the applicant’s reliance on the interpretation
of section 157 of the LRA by this Court in
McCarthy (supra
)
disregards the fact that
McMarthy
was decided before the
Constitutional Court elucidated the correct meaning of the same
section in 2009, in
Gcaba (supra
).
[21]
It is for those reasons that the application was dismissed.
[22]
An order was granted for the applicant to pay the first and second
respondent‘s cost including costs of two Counsel.
The costs
excluded the costs of 13 February 2014. This matter was set down for
13 February 2014 on which day it was postponed to
the following day.
The postponement could not be attributed solely to the conduct of the
applicant. It would therefore have, in
the circumstances not be fair
to order the applicant to pay the costs of the 13 February. Section
162 of the LRA provides that
an order for payment of costs may be
made according to the requirements of law and fairness. The law
requires that cost should
generally follow the result. It would not
have been fair to expect the first and second respondent to incur
costs as a result of
the incorrect manner in which the applicant
chose to approach this Court.
_________________
Lallie J
Judge of the Labour
Court of South Africa
APPEARANCES
For
the Applicant: Mr
Bollo of Biccari Bollo Mariano Inc
For
the First Respondent: Advocate
Stelzner SC with Advocate Coetzee
Instructed
by A J Tapeenden & Co
For
the Second Respondent: Advocate Cassim SC with
Advocate Mooki
Instructed
by Werksman Attorneys
[1]
2010 (1) SA 238
at para 73
[2]
(2010) 31
ILJ
1453
(LC)
[3]
[2003] 2 BLLR 193
(LC) at 195 G-H
[4]
(2009) 30 ILJ 2623 (CC) at para 72 and 73