About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 248
|
|
Labe v Legal Aid South Africa and Others (JS895/16) [2017] ZALCJHB 248 (20 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JS 895/16
In
the matter between:
TILLY
LABE
Applicant
And
LEGAL
AID SOUTH AFRICA
First Respondent
BRAIN
NAIR
Second Respondent
PATRICK
HUNDERMARK
Third Respondent
FLAVIA
ISOLA
Fourth Respondent
AYSHA
ISMAIL
Fifth Respondent
THE
CURRENT BOARD MEMBERS OF THE LEGAL
AID SOUTH AFRICA
Sixth Respondent
Heard:
12 May 2017
Delivered:
20 June 2017
JUDGMENT
TLHOTLHALEMAJE,
J.
Introduction:
[1]
The applicant was dismissed from the first respondent’s employ
on 6 May 2016 after a disciplinary enquiry into various
allegations
of misconduct. She subsequently referred an alleged unfair dismissal
dispute to the CCMA. As appears from the ruling
issued by the CCMA on
25 August 2016, the applicant’s representative at the
arbitration proceedings had informed the Commissioner
that the issues
in dispute pertained to alleged victimisation, intimidation,
harassment, and discrimination based on arbitrary
grounds, and that
the applicant ‘
would like to pursue this matter at the
Labour Court’
. Based on this request, the Commissioner
issued a ruling to the effect that the CCMA lacked jurisdiction to
determine the dispute.
[2]
It is now trite that the CCMA
cannot decline jurisdiction over a dispute simply on the say-so of a
party without an attempt at determining
what the dispute is about.
The Labour Appeal Court has long held in
South
African Motor Industry Employers’ Association v NUMSA
[1]
that the Court cannot assume jurisdiction over a matter to be
ordinarily determined by the CCMA, even if the parties purported
to
confer such jurisdiction by agreement. It therefore follows that a
party cannot chose to confer jurisdiction on this court unless
the
nature of the dispute referred is one capable of adjudication.
[3]
The applicant approached this
court with a statement of case on 26 October 2016, and alleged that
her dismissal was both procedurally
and substantively unfair. Her
contention was that the dismissal was in contravention of the
provisions of section191(1)(a)
[2]
of the Labour Relations Act
[3]
and/or in the alternative, in contravention of section 187(1)(f)
[4]
read with section 6
[5]
of the Employment Equity Act.
[6]
[4]
The applicant further seeks various forms of relief, including
maximum compensation; 24 months remuneration if her dismissal
is
found to have been automatically unfair; pension pay-out in the
amount of R233 586.00; compensation for unfair discrimination,
intimidation, harassment, victimisation and invasion of her privacy
in the amount of R10m; and compensation in the amount of R10m
for
personal injury, psychological damage and/or pain and suffering.
[5]
The first respondent in its
answering statement of case raised a special plea, contending
inter
alia
that the applicant’s
claim has prescribed in terms of the provisions of the Prescription
Act.
[7]
Secondary to the special plea, the respondent also raised two points
in limine
being the failure by the applicant to cite the second to fifth
respondents in their
nomine
officio.
Differently put,
the applicant has cited the second to fifth respondents in their
personal capacities. The first respondent further
takes issue with
the citation of the sixth respondent as it was lacking in
specificity.
Background:
[6]
The applicant is an admitted
attorney and was before her dismissal, employed as a Civil
Professional Assistant by the first respondent.
The first respondent
is an independent statutory institution established in terms of the
provisions of section 2
[8]
of the Legal Aid South Africa Act
[9]
.
[7]
The dismissal of the applicant
flowed from several charges of misconduct preferred against her.
[10]
She was initially placed on precautionary suspension on or about 3
December 2015, and was thereafter called upon to appear before
a
disciplinary committee enquiry scheduled for 18 and 19 February 2016.
[8]
At the commencement of the disciplinary enquiry, the applicant made
an application that the fourth respondent (Isola), who was
appointed
as initiator of the disciplinary hearing, and the fifth respondent
(Ismail), who was appointed as the chairperson, should
recuse
themselves. The basis of the objection raised in respect of Isola was
that she had prior knowledge of the facts of the matter,
whilst that
against Ismail was that her independence was questionable as she an
employee of the first respondent.
[9]
Both objections were dismissed. Aggrieved by the decision of the
chairperson, the applicant elected not to participate any further
in
the disciplinary proceedings, and accordingly left the hearing venue.
The chairperson nevertheless proceeded with the enquiry
in her
absence, and dismissed her on 6 May 2016.
The
citation of the second – sixth respondents:
[10]
The second respondent, Brain
Nair is the first respondent’s National Operations
Executive.
[11]
The third respondent, Patrick Hundermark is its Chief Legal
Executive.
[12]
The fourth respondent, Flavia Isola is the Justice Centre Pretoria
Executive, and was the initiator of the Internal Disciplinary
hearing.
[13]
The fifth respondent, Aysha Ismail is the Justice Centre Germiston
Executive, and was the Chairperson of the internal disciplinary
hearing.
[14]
The sixth respondent is cited in the statement of case as the current
board members of the first respondent.
[11]
The first respondent’s
contention was that the second to fifth respondents were cited in
their personal capacities and not
in their capacities
nomine
officio
and that the
applicant had therefore failed to establish
locus
standi
against them. In her
statement of claim, the applicant seeks an order ‘
declaring
that the conduct and behaviour of the second, third, fourth and fifth
respondents in handling the entire disciplinary
process and dismissal
constitute abuse of power and authority’
[15]
.
It was further submitted on
behalf of the applicant that these individuals were acting in their
nomine officio
capacity and in the course and scope of their employment with the
first respondent when they conducted the disciplinary enquiry.
[12]
In regard to the sixth respondent (Board members), the first
respondent’s objection was that the applicant sought relief
against them without identifying who in particular the relief was
sought against and the basis thereof. The applicant’s
contention was that the sixth respondents were cited on the grounds
that the relief sought against them was for them to institute
disciplinary action against ‘the respondents’ as they had
abused their position and authority. In argument however,
it was
contended that no relief is sought against the board members in their
individual capacity, and that the first respondent’s
objection
to their citation was overly technical and elevating form over
substance
.
[13]
It is trite that for parties to
be joined to particular proceedings, they must have a direct and
substantial legal interest
[16]
in the matter such as to make them necessary parties to the
proceedings. It is further trite that
only
parties that would be directly affected by the Court’s order
are necessary parties to the proceedings
[17]
.
[14]
Having had regard to the applicant’s
statement of case, the written heads of argument and submissions made
on her behalf,
it is not clear on what basis the second to sixth
respondents were cited in these proceedings. The second respondent
(Nair) is
cited simply on the basis that he allegedly never attempted
to resolve the applicant’s grievance pertaining to the alleged
sexual harassment and the failure to appoint her to the position of
supervisor. It is not clear from her statement of case when
this
grievance was lodged and when it was escalated to Nair. Other than
this omission, Nair does not appear anywhere else in the
statement of
case, and as to what interest he has in the matter and what relief is
sought from him is unknown.
To the extent that the dispute in
regard to the alleged automatically unfair dismissal arising from the
alleged grievance is to
be determined, it might be necessary to call
him as a witness, and I fail to appreciate the reason he was cited in
these proceedings.
He should therefore not have been joined in these
proceedings, whether in his personal or official capacity.
[15]
Similarly, Hundermark is cited as the third respondent. There is
however nothing in the statement of case that indicates the
reason he
was cited, what interest he has in the matter whether direct or
substantial, or what relief is sought from him. The applicant
merely
made a bald allegation that he together with the other respondents
had abused their position and power by proceedings with
the charges
against her. As to what Hundermark’s role in these allegations
is remains unknown.
He should also not have been
joined to these proceedings in whatever capacity.
[16]
The citation of the fourth and fifth respondents who had acted as
initiator and chairperson of the disciplinary enquiry is
equally
baffling. These two individuals did not appoint themselves in those
positions, nor did they act in those positions in their
personal
capacities. They were mandated by the first respondent to conduct the
disciplinary hearing. To the extent that the applicant
is not
satisfied with the manner with which they had conducted the
disciplinary proceedings (bearing in mind that she had declined
to
participate in those proceedings), that is an issue that goes to the
procedural fairness of the dismissal, and which might lead
to a
necessity to call them as witnesses in the event of a trial. To
therefore simply cite them in these proceedings amounts to
an abuse
of the court’s process, and the applicant has not laid a basis
to indicate that they have any direct or substantive
interests in the
outcome of this adjudication.
[17]
The citation of the first respondent’s board members is equally
in my view unnecessary and meant to cause irritation.
The only basis
upon which they were cited is that the applicant seeks an order
directing them to institute disciplinary proceedings
against the
other respondents for alleged abuse of authority and power in dealing
with the disciplinary processes and her dismissal.
As to whether the
board members have such powers under the provisions of section 4 of
Legal Aid South Africa Act is something
else. Be that as it
may, even if the board could exercise such a power, it is not for
this court to make orders directing members
of a board of a statutory
body to take disciplinary action against employees involved in the
institution of a disciplinary process
against another employee. It is
within employer’s prerogative to discipline its own employees
where the need arises, and
it is not for this court to interfere with
that prerogative. The sixth respondents therefore have no direct or
substantial interests
in the proceedings, and should not have been
cited.
Prescription:
[18]
The first respondent’s
contention was that when the dispute was referred to the CCMA, it was
the first time that the applicant
had raised issues surrounding
victimisation, and that this issue in any event dates back to
September 2011, when she had lodged
a grievance. To this end, it was
submitted that the provisions of section 10
[18]
of the Prescription Act provides for the extinction of a debt after
the expiration of a period as provided for by the provisions
of
section 11
[19]
of the Prescription Act. In the current dispute, the period of
prescription was three (3) years taking into consideration the
provisions of section 11(d), and that the claim therefore prescribed
or on before 27 September 2014.
[19]
The first respondent further contended that in order for the
applicant to have adequately raised the claim, she would have
had to
refer the matter to the CCMA within 90 days of becoming aware of her
claim, and that she had not done so. To the extent
that she had not
done so, her claim prescribed on 27 September 2014, and that the
claim of victimisation ought to be dismissed
with costs.
[20]
The applicant in her answer to
the special plea places reliance on section 15
[20]
of the Prescription Act. She contends that prescription would only
start to run from the date that the CCMA issued a certificate
of
outcome in a dispute. She further contends that her matter was still
subject to internal grievance process and as such, the
dispute was
not ripe to be referred to the CCMA for conciliation and/ or
adjudication. On that basis, she contends that she had
not acquired
the right to approach the CCMA for a referral of the dispute as that
would have been premature. In her view, the period
of prescription
would only run from the date the jurisdictional ruling was issued by
the CCMA.
[21]
The applicant further places
reliance on section 12(1)
[21]
of the Prescription Act for the proposition that her claim is not a
debt for the purposes of the Prescription Act. In her
view, the
claim only becomes a debt once an award is certified presumably in
terms of section 143(3)
[22]
of the Labour Relations Act or once the award is made an order of
court.
[22]
The starting point in the determination of the special plea raised
would be to examine the nature of the dispute referred to
this Court.
In her statement of claim, the applicant contended that her dismissal
was procedurally unfair in the light of the refusal
of both the
initiator and the chairperson to recuse themselves as per her
request, and further since the enquiry was held in her
absence after
she had excused herself. She contended that she was denied the right
to a fair hearing.
[23]
The applicant in regards to the substantive fairness of her dismissal
contended that despite not being guilty of the charges,
she was
victimised, intimidated, harassed and unfairly discriminated upon
based on arbitrary reasons. The basis of allegations
of harassment
and intimidation emanate from the alleged refusal by Hananusha, the
senior legal manager, to move the disciplinary
enquiry from 8.30 to
14.00; and her alleged altercation with Isola in the hearing room
prior to the enquiry, and/or the latter’s
alleged conduct
towards her. She had further contended that despite not being guilty
of the charges, she was victimised, intimidated
and harassed.
[24]
The allegations of sexual harassment and victimization arise out of
incidents with one Andries Nchebe who allegedly had a tendency
to
call the applicant ‘
baby’
at the workplace. The
applicant further complained of Nchebe’s change of attitude
towards her after she had asked him not
call her ‘
baby’
,
and the failure by Nchebe to shortlist her for an interview in
respect of an advertised position. Despite being called for an
interview, the applicant was not appointed and she holds the view
that this was as a consequence of ‘
quid pro quo harassment
and victimisation’
.
[25]
The allegations of unfair discrimination on arbitrary grounds
according to the applicant arise from the allegation that she
was the
only one charged and subjected to a disciplinary hearing whereas
‘there were other employees against whom the employer
had
sufficient grounds to discipline.’
[26]
Prior to determining whether the applicant’s claim in respect
of the alleged victimisation or harassment has prescribed
in terms of
the provisions of the Prescription Act, a few general remarks need to
be made in respect of the applicant’s other
claims as referred
to above.
[27]
It is apparent from the background illustrated somewhere in this
judgment that the dismissal came about because of allegations
of
misconduct being levelled against the applicant.
The
allegations of harassment and intimidation emanating from the alleged
refusal by Hananusha to move the disciplinary enquiry
from 8.30 to
14.00 and the applicant’s alleged altercation with Isola in the
hearing room prior to the enquiry, and the latter’s
alleged
conduct towards her are mere ancillary issues to the disciplinary
process and as to how much weight they will add to a
finding of
unfairness of her dismissal is unknown. I further fail appreciate the
applicant’s contention that she was subjected
to victimisation
and harassment despite not being guilty of the charges against her.
This contention is however unsubstantiated
in that she had on her own
version, refused to participate in the disciplinary enquiry which had
ultimately found her guilty of
the charges preferred against her, and
it is not clear how she was victimised or harassed.
[28]
The applicant’s contention that the discrimination against her
emanates from the fact that other employees were not charged
or
disciplined despite having committed misconduct is equally
problematic. Ordinarily, this contention pertains to the substantive
fairness of the dismissal, and in particular, allegations of
inconsistent application of discipline. Even if there was any
semblance
of discrimination in these allegations, there is nothing in
the statement of case that demonstrates what that alleged
discrimination
entailed or alternatively, what arbitrary grounds are
relied upon as mentioned in section 6 (1) of the EEA. The applicant
has not
identified any arbitrary ground upon which the discrimination
is based.
[29]
Other grounds upon which it was alleged that the dismissal was unfair
related to the alleged violation of her privacy in that
her private
information was used to formulate charges against her; that the
employer had no grounds for formulating certain charges
against her;
and the psychological and emotional harm because of her dismissal.
These factors are either ancillary to or are a
consequence of a
dismissal.
[30]
Having had regard to the above factors, it appears that the statement
of case is merely a mixed pot, wherein everything and
anything
thought of by the applicant was thrown in to make up a case outside
of the ordinary alleged unfair dismissal dispute,
with the sole
purpose of justifying why this court should assume jurisdiction over
this dispute.
[31]
The above observations are made
within the context of the point made at the beginning of this
judgment that the CCMA cannot decline
jurisdiction over disputes
simply because parties
would
like to pursue their matters in this
court
[23]
.
In
Hospersa obo Tshambi v
Department of Health, KwaZulu-Natal
[24]
,
it was held that there is
an obligation on Commissioners to determine the true dispute between
the parties, to establish the relevant
facts, to construe the
category of dispute correctly, and to make an objective finding about
what is the dispute to be determined.
This exercise might appear
onerous, but it is however necessary in order to prevent instances
where disputes end up in this Court
when they should have been
arbitrated. Equally so, this court is enjoined to ascertain the true
nature of the dispute between the
parties
[25]
,
and it does not necessarily have to rely on how the parties have
pleaded their cases.
[32]
Within the context of the various disputes dealt with above, it
appears that the alternative claim in terms of section 187
(1) (f) of
the LRA, and to the extent that the applicant alleged that her
dismissal was automatically unfair, pertains to the lodging
of a
grievance in September 2011 in respect of the alleged sexual
harassment and victimisation. If I understood the applicant’s
case, the dispute pertains to the incident with Nchebe, and the
subsequent failure to gain promotion after she had applied for
a
supervisory position. The applicant regards this as
quid pro quo
harassment.
[33]
In her statement of case, the applicant omitted to state the details
in regard to the allegation of sexual harassment, and
merely
contended that she had ‘incidents’ with Nchebe. The
applicant failed to indicate when these alleged ‘incidents’
took place. It is not known when she had advised Nchebe to desist
from his alleged conduct, or when she had applied for the particular
position. It is further not known when she had raised the issue of
her not being shortlisted, and when she had escalated the grievance
to Nair. Be that as it may, it was not disputed that the applicant
took no steps between the lodging of the grievance in or around
September 2011, and the referral of the dispute to the CCMA in August
2016.
[34]
The applicant moves from the premise that this particular dispute had
not yet matured for referral to the CCMA for the purposes
of
conciliation, as the internal processes had not yet been exhausted,
and that to the extent that there was no prescription applicable
to
referral of disputes and resolution thereof internally, prescription
had not begun to run.
[35]
The question to be answered is whether but for her dismissal, would
the applicant ever have referred a dispute in regard to
the alleged
victimisation and harassment? Simply put, can an employee lodge a
dispute outside the timeframes contemplated in section
191 of the LRA
on the basis that it is only upon a referral of that dispute or the
issuing of a certificate that prescription (to
the extent that it is
deemed applicable) is interrupted.
[36]
Whether the Prescription Act is
applicable to the dispute resolution scheme of the LRA, and in
particular, to the provisions under
section 191 of the LRA, was a
matter the Constitutional Court could not decisively pronounce upon
in
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
and Others
[26]
,
albeit
within
the context of the application of the Prescription Act to arbitration
awards
.
[37]
In the first judgment written by Jafta J, with Nkabinde ADCJ,
Khampepe J and Zondo J concurring, it was held that the Prescription
Act was incompatible with the provisions of the LRA, particularly in
the light of the fundamental differences between the statutes.
The
first judgment therefore concluded that the latter did not apply to
the LRA
.
[38]
In the second judgment in
Myathaza
written by
Froneman J, with Madlanga J, Mbha AJ and Mhlantla J concurring, it
was held that the Prescription Act was not inconsistent
with the LRA,
but complementary to it. It was further held that
the
relevant provisions of the two Acts were capable of complementing
each other in a way that best protected the fundamental right
of
access to justice, whilst at the same time preserving the speedy
resolution of disputes under the LRA
[27]
.
Having found
that the two statutes were consistent, the second judgment further
examined the meaning of “
process
”
and “
debt”
in section 15 of the Prescription Act and held that service of
process initiating the CCMA dispute resolution process interrupted
prescription within the ambit of section 15 (1) of the Prescription
Act
[28]
.
The applicant in this case relied upon this approach.
[39]
The third judgment written by
Zondo J
supported
the first judgment’s finding that the Prescription Act was not
applicable to LRA matters. In contrast to the second
judgment, Zondo
J further held that the referral form for conciliation either at the
CCMA or Bargaining Council is not a “process”
such as is
contemplated in section 15(1) of the Prescription Act, and it could
not interrupt the running of prescription as contemplated
by section
15(1) read with subsection (6). The reasoning for this approach
was that in terms of section 15(1) read with subsection
(6) of the
Prescription Act, the process contemplated in section 15(1) was a
process that commenced legal proceedings, whereas
conciliation
proceedings could not be described as legal proceedings
[29]
.
Second, the referral of a dismissal dispute to conciliation did not
lead to a judgment, but only resulted with either an agreement
resolving the dispute, or a certificate of outcome to the effect that
the dispute remained unresolved or with neither an agreement
nor a
certificate but with the expiry of the 30-day period within which the
parties are required to try and resolve the dispute
[30]
.
[40]
As a result of the parity of
votes in
Myathaza
,
in which none of the judgments secured a majority, there is currently
no binding basis of decision emerging from that Court’s
decision
[31]
.
The
prevailing Labour Appeal Court authority on the issue of whether the
Prescription Act is applicable to the LRA remains that
in
Fawu
obo Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd
[32]
.
The Labour Appeal Court (per Sutherland JA) having considered
previous pronouncements on the issue of prescription by the LAC
alluded to the fact that those authorities, including
Myathaza
[33]
,
did
not propose that litigation under the LRA, prior to the rendering of
an award, (or a judgment by the Labour Court) was
subject to the
Prescription Act.
[41]
The Labour Appeal Court
held
that
the Prescription
Act indeed applied to all litigations under the LRA, not least of
all, litigations prosecuted in terms of section
191
[34]
.
The Court added that a referral
per
se
played no role in
interrupting prescription since it did not commence legal
proceedings, and that a referral was no more than
a condition to be
fulfilled to obtain access to a forum that can adjudicate a
dispute
[35]
.
[42]
The Court further held that for
a ‘process’ to be initiated for the purposes of
interruption of prescription, the referring
party must after the
referral and exhaustion of conciliation in terms of section 191(5)(b)
have referred the dispute to the Labour
Court for adjudication, which
involves, in accordance with Rule 6(1) of the Labour Court Rules, the
filing of a statement of case,
which, in terms of section 191(11)
(a), must be done within 90 days of the certificate of
non-resolution
[36]
.
[43]
Applying the decision and reasoning of Sutherland JA in
Fawu
obo Gaoshubelwe and Others
in this
case,
the dispute in respect of the alleged victimisation or
harassment arose from incidents dating back to September 2011, and
the applicant
had not done anything to pursue that dispute until
August 2016. It would therefore be impermissible to allow her to
‘piggy-back’
the alleged sexual harassment and
victimisation dispute on the alleged unfair dismissal dispute that
took place in May 2016. To
hold otherwise would be to countenance the
circumvention of the provisions of section 191 (1) (b) of the LRA,
and those of section
10 (1) of the EEA to the extent that unfair
discrimination is alleged. This is so in that the mere fact that the
Prescription Act
has been held to be applicable to the general scheme
of section 191 of the LRA does not imply that the procedural
requirements
contemplated therein have become nugatory.
[44]
In
Jabari
v Telkom SA (Pty) Ltd
[37]
,
this court confirmed that an employee has a statutory and
constitutional right to pursue grievances, and that a dismissal
pursuant
to the lodging of a grievance is automatically unfair. In
this case, the grievance was lodged in September 2011, whilst her
dismissal,
which
prima facie
appears unrelated to the
alleged grievance, took place in May 2016. The fact that the
certificate of outcome was issued in respect
of this dispute does not
assist the applicant as on the LAC authority relied upon,
prescription started to run from when the alleged
harassment or
victimisation took place, and could only have been interrupted by
initiation of adjudication through the filing of
a statement of case.
As at the time the statement of case was filed, the claim had
accordingly long prescribed.
[45]
Similarly, it is trite
that the certificate of outcome, to the extent that it may be relied
upon, is of no assistance to the
applicant
[38]
.
There is further no substance to the contention that this particular
dispute could not have been lodged earlier as it had
not been
exhausted internally, particularly since it is not stated in the
pleadings as to what the applicant had done to get a
resolution in
that regard prior to her dismissal.
[46]
In the light of the above, it follows the applicant’s claim of
an automatically unfair dismissal based on the alleged
victimisation
or sexual harassment that occurred in September 2011 has prescribed
and thus, ought to be dismissed. Ordinarily,
this court would not
have jurisdiction to determine the alleged unfair dismissal dispute
based on the case pleaded and the observations
made in that regard as
addressed somewhere in this judgment, and further in the light of the
conclusions reached in respect of
the alleged automatically unfair
dismissal claim. To the extent that this court might have
jurisdiction in respect of the alleged
unfair dismissal dispute, this
would only be for the purposes of the determination of whether the
alleged failure by the first
respondent to discipline other employees
who had allegedly committed misconduct constituted a
discrimination within the meaning
of section 6 of the EEA against the
applicant.
[47]
In the applicant’s heads of argument, it had been argued that
to the extent that the court upheld the first respondent’s
special plea on prescription, she should be afforded an opportunity
to amend her statement of claim. I however see no reason why
the
applicant should be granted such an indulgence, especially since the
first respondent had not excepted to the statement of
case other than
raising the points already dealt with. In my view, the applicant
should stand and fall by her pleadings in so far
as she had claimed
discrimination outside of the automatically unfair dismissal claim
already declared to have prescribed. I have
further considered the
issue of costs, and I am of the view that these should be in the
cause. Accordingly, the following order
is made;
Order:
i. The first respondent’s
preliminary points in respect of the citation of the second to sixth
respondents is upheld,
and it is declared that they are not party to
these proceedings.
ii. The first respondent’s
special plea is upheld and it is declared that the applicant’s
claim of an alleged
automatically unfair dismissal has prescribed in
accordance with the provisions of the Prescription Act.
iii. The costs associated with
the preliminary points and special plea as raised by the first
respondent are to be costs in
the cause.
iv.
The parties may approach the Registrar of this Court to set the
matter down for trial.
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr M Mamatela of Mamatela Attorneys Inc.
For
the Third Respondent: Mr. N Mohamed of Nadeem Mohamed Attorneys
[1]
[1997]
9 BLLR 1157 (LAC)
[2]
Section
191.
Disputes
about unfair dismissals and unfair labour practices
(1)
(a) If there is a
dispute
about the fairness of a
dismissal
,
or a
dispute
about an unfair labour practice, the dismissed
employee
or the
employee
alleging the unfair labour
practice may refer the
dispute
in writing to -
(i) a
council
, if
the parties to the
dispute
fall within the registered
scope
of that
council
; or
(ii) the Commission, if
no
council
has jurisdiction
[3]
Act 66 of 1995
[4]
Section187.
Automatically
unfair dismissals
(1) A
dismissal
is
automatically unfair if the employer, in dismissing the
employee
,
acts contrary to section 5 or, if the reason for the
dismissal
is
–
…
(
f)
that the
employer unfairly discriminated against an
employee
, directly
or indirectly, on any arbitrary ground, including, but not limited
to race, gender, sex, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, conscience, belief,
political opinion, culture, language, marital status or family
responsibility.
[5]
6.
Prohibition of unfair discrimination
(1)
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one
or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth or
on any other
arbitrary ground.
[6]
Act 55 of 1998
[7]
Act 68 of 1969
[8]
Section 2 Provides:
Establishment
of Legal Aid South Africa and its relationship with Board
2.
(1) There is hereby
established a national public entity as provided for in the Public
Finance Management Act, to be known as
Legal Aid South Africa, which
is governed by a Board appointed under section 6.
(2) The Board, of which
the powers, functions and duties are set out in section 4, is
represented by the chief executive officer
and any director or
directors as may be designated by the Board.
[9]
Act 39 of 2014
[10]
On 2 February 2016, the applicant was charged with
·
Conduct prejudicial to the maintenance of good order on the premises
of the first respondent
·
Unruly behaviour
·
Threatening assault, fighting and/ or unacceptable aggressive
behaviour that can cause physical injury to
colleagues
·
Attacking the honour, dignity or good name of Bawinile Tautswala, a
colleague and other colleagues in that
the applicant made unfounded
and derogatory allegations
·
Making racial remarks/statements
·
Engaging in action that harms the team spirit and loyalty between
employees
·
Conduct resulting in or potentially resulting in damage to the
reputation of the first respondent or bring
the name of the first
respondent into disrepute
·
Gross dishonesty
[11]
Para 5 of the applicant’s statement of case
[12]
Para 6 of the applicant’s statement of case
[13]
Para 7 of the applicant’s statement of case
[14]
Para 8 of the applicant’s statement of case
[15]
Para 7
Under
Relief Sought.
[16]
A ‘direct or substantial interest’ is defined as “
an
interest in the right which is the subject matter of the litigation
and not merely a financial interest
:”;
‘
a
legal interest in the subject matter of the litigation
”
See
Henry
Viljoen (Pty) Ltd v Awerbuch Brothers
1953 (2) SA 151
(O)
at 169-170; and
Amalgamated
Engineering Union v Minister of Labour 1949 (3) SA 637 (A)
[17]
Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd 2003 (4) All SA 471
[18]
Section 10. Extinction of debts by prescription
(1) Subject to the
provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the
lapse of the period which in
terms of the relevant law applies in respect of the prescription of
such debt.
(2) By the
prescription of a principal debt a subsidiary debt which arose from
such principal debt shall also be extinguished
by prescription.
(3)
Notwithstanding the provisions of subsections (1) and (2), payment
by the debtor of a debt after it has been extinguished
by
prescription in terms of either of the said subsections, shall be
regarded as payment of a debt.
[19]
Section
11. Periods of prescription of debts
The
periods of prescription of debts shall be the following:
(a) thirty years
in respect of—
(i) any debt
secured by mortgage bond;
(ii) any judgment
debt;
(iii) any debt in
respect of any taxation imposed or levied by or under any law;
(iv) any debt owed to
the State in respect of any share of the profits, royalties or any
similar consideration payable in respect
of the right to mine
minerals or other substances;
(b) fifteen years
in respect of any debt owed to the State and arising out of an
advance or loan of money or a sale or lease
of land by the State to
the debtor, unless a longer period applies in respect of the debt in
question in terms of paragraph (a);
(c) six years in
respect of a debt arising from a bill of exchange or other
negotiable instrument or from a notarial contract,
unless a longer
period applies in respect of the debt in question in terms of
paragraph (a) or (b);
(d) Save where an
Act of Parliament provides otherwise, three years in respect of any
other debt.
[20]
15
Judicial
interruption of prescription
(1)
The
running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of
any
process whereby the creditor claims payment of the debt.
(2)
Unless
the debtor acknowledges liability, the interruption of prescription
in terms of subsection (1) shall lapse, and the running
of
prescription shall not be deemed to have been interrupted, if the
creditor does not successfully prosecute his claim under
the process
in question to final judgment or if he does so prosecute his claim
but abandons the judgment or the judgment is set
aside.
(3)
If
the running of prescription is interrupted as contemplated in
subsection (1) and the debtor acknowledges liability, and the
creditor does not prosecute his claim to final judgment,
prescription shall commence to run afresh from the day on which the
debtor acknowledges liability or, if at the time when the debtor
acknowledges liability or at any time thereafter the parties
postpone the due date of the debt, from the day upon which the debt
again becomes due.
(4)
If
the running of prescription is interrupted as contemplated in
subsection (1) and the creditor successfully prosecutes his claim
under the process in question to final judgment and the interruption
does not lapse in terms of subsection (2), prescription
shall
commence to run afresh on the day on which the judgment of the court
becomes executable.
(5) If any
person is joined as a defendant on his own application, the process
whereby the creditor claims payment
of the debt shall be deemed to
have been served on such person on the date of such joinder.
(6) For the
purposes of this section, “process” includes a petition,
a notice of motion, a rule
nisi
, a pleading in reconvention,
a third party notice referred to in any rule of court, and any
document whereby legal proceedings
are commenced.
[21]
Section 12.
When
prescription begins to run
(1) Subject to the
provisions of subsections (2), (3) and (4), prescription shall
commence to run as soon as the debt is
due.
…
[22]
143.
Effect
or arbitration awards
(1) An
arbitration award issued by a commissioner is final and binding and
it may be enforced as if it were an order
of the Labour Court in
respect of which a writ has been issued, unless it is an advisory
arbitration award.
(2) If an
arbitration award orders a party to pay a sum of money, the amount
earns interest from the date of the award
at the same rate as the
rate prescribed from time to time in respect of a judgment debt in
terms of section 2 of the Prescribed
Rate of Interest Act, 1975 (Act
No. 55 of 1975, unless the award provides otherwise.
(3) An
arbitration award may only be enforced in terms of subsection (1) if
the director has certified that the arbitration
award is an award
contemplated in subsection (1).
[23]
See
CUSA
v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC)
at para 66, where the Court held that;
“
In
deciding what the real dispute between the parties is, a
commissioner is not necessarily bound by what the legal
representatives
say the dispute is. The labels that the parties
attach to a dispute cannot change its underlying nature. A
commissioner is required
to take all the facts into consideration
including the description of the nature of the dispute, the outcome
requested by the
union and the evidence presented during the
arbitration ...The dispute between the parties may only emerge once
all the evidence
is in”
[24]
[2016]
7 BLLR 649
(LAC)
at para 16
[25]
See
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another (2003) 24 ILJ 305 (CC)
at para 52, where the Court held that;
“
It is the duty of
a court to ascertain the true nature of the dispute between the
parties. In ascertaining the real dispute, a
court must look at the
substance of the dispute and not at the form in which it is
presented. The label given to a dispute by
a party is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as reflected
in the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration
(CCMA),
before and after referral of such dispute. These would include
referral documents, the certificate of outcome and all
relevant
communications. It is also important to bear in mind that parties
may modify their demands in the course of discussing
the dispute or
during the conciliation process. All of this must be taken into
consideration in ascertaining the true nature
of the dispute.”
[26]
2017
(4) BCLR 473
(CC); See also
Maria
Jane Mogaila v Coca Cola Fortune (Pty) Limited
[2017]
5 BLLR 439
(CC)
[27]
At
para 66
[28]
At para 75
and 82
[29]
At para 140
[30]
At para 141
[31]
Mogaila at
para 27
[32]
[2016] 12
BLLR 1175 (LAC)
[33]
2016) 376
ILJ 413 (LAC).
[34]
At para 45
[35]
At para 60
[36]
At para 56
[37]
(2006)
27 ILJ 1854 (LC)
[38]
See
Bambardier
Transportation (Pty) Ltd v Mtiya
[2010] 8 BLLR 840
(LC); SAMWU v
Ngwathe Local Municipalities
[2015] 9 BLLR 894
(LAC); BMW South
Africa (Pty) Ltd v Numsa obo members [2012]
3 BLLR 274
(LAC)