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[2019] ZALCJHB 161
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National Union of Mineworkers v Bidvest Protea Coin (Pty) Ltd and Others (J1391/19) [2019] ZALCJHB 161 (28 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 1391/19
In the matter between:
NATIONAL UNION OF
MINEWORKERS Applicant
and
BIDVEST PROTEA COIN
(PTY) LTD
First
Respondent
HARMONY GOLD
MINE
Second Respondent
Heard: 5 June 2019
Delivered:
28 June 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicant (NUM), seeks various orders on an urgent basis,
including;
a)
That the decision of the second respondent to remove the affected
employees of the first respondent from its employ/premises be
declared unlawful and set aside;
b)
That the retrenchment processes initiated under section 189A
of the
LRA by the first respondent to remove the employees be declared
unlawful, null and void, and be set aside;
c)
That all contractual provisions between the first and second
respondents and/or between the first respondent and its members
employed by the first respondent which allow for the removal of
employees from their employment premises without following dismissal
processes within the LRA be declared null and void, against
public
policy, unlawful and be set aside;
d)
Interdicting and restraining the respondents from executing
and/or
enforcing retrenchment processes initiated under section 189A of the
LRA against the affected first respondent’s employees;
e)
Interdicting and restraining the respondents and/or any member
of the
respondents from executing and/or enforcing the decision to remove
the affected first respondent’s employees from
the second
respondent’s premises and/or from their employment with the
first respondent.
[2]
The above urgent relief is sought against the following common cause
facts;
2.1
NUM represents its members who are employed by the first respondent
(Protea)
to provide security and other related services to the second
respondent (Harmony).
2.2
Harmony is in the business of the mining of gold bearing material at
various
sites throughout the Republic.
It entered
into various contracts of service with Protea since 2004 for the
rendering of security services at its various mining
sites.
2.3
An essential term of the contract of service between Harmony and
Protea is that
should the former have any objection at any point in
regards to the rendering of further services by any personnel of
Protea, it
had the right to request the removal of such personnel
from its premises. This term is premised on Harmony’s concern
for
the high risk in which it operates its business, and the
possibilities of theft of gold bearing material.
2.4
In line with the quest to protect its interests, part of the terms of
the service
agreement is that Protea may be requested to have its
employees subjected to polygraph testing when on site, as incidents
which
regularly bring their integrity, honesty and character
generally occurred. Furthermore, Harmony may also request the removal
of
a security guard for reasons deemed appropriate.
2.5
Protea in turn entered into contracts of employment with the
employees to render
services at various operations of Harmony. Part
of the terms and conditions of these contracts of employment are that
employees;
2.5.1
Acknowledged and agreed that Protea could transfer them after due
consultation to another section or division;
2.5.2
That they would submit upon request by Protea and clients, to undergo
polygraph, truth verification, lie-detector,
alcohol and substance
testing.
2.5.3
In the event of a failure by the employee of the tests, or failure to
undergo such testing, the employee
upon a request by the client for
his removal from site, may be removed and ultimately retrenched from
Protea’s employ.
2.6
In March 2019, Harmony advised Protea of suspected incidents of
theft of
gold bearing material at its Target Plant in Welkom. A joint
investigation was conducted by Harmony and Protea, the outcome of
which revealed that certain of Protea’s employees were involved
in incidents of theft of gold bearing material in a criminal
enterprise engaged in by a number of those employees.
2.7
Resulting from the investigations, Harmony requested that all 19 of
Protea’s
employees based at the Target site should undergo
polygraph tests. Arrangements were then made for these tests to be
undertaken.
2.8
On 8 April 2019, consultations were held between NUM and
Protea, and
it was explained to NUM the reason some of the employees
were to be subjected to polygraph tests. On 9 April 2019, the
affected
employees were notified as to where and when to attend and
take the test.
2.9
On own NUM’s version, the affected employees consulted with it
on 19 April 2019
and had agreed not to take the test. As a
result, only six out of the 19 employees who are NUM members refused
to undergo the test.
The seven other employees who are also NUM
members undertook the test and passed, and are currently still at the
Target site. One
other employee had undertaken the test and failed.
After a second attempt, he had passed the test, but was still removed
from the
site to an alternative position.
2.10
Harmony then demanded the removal of the employees who refused to
undertake the test. Protea
subsequently placed these employees on
suspension on 18 April 2019 pending a disciplinary
investigation into their conduct,
as their refusal was viewed to be
in breach of their contractual obligations.
2.11
In the
light of Harmony’s demand to have the employees removed, and
following their suspension, Protea then issued section
189A(2) and
(3) of the Labour Relations Act (LRA)
[1]
notices on 26 April 2019. Amongst alternatives to a
retrenchment was an offer to place or transfer these employees to
other sites in the Northern Cape and Mpumalanga. Some of the offers
of alternative sites came with even higher salaries.
2.12
Consultations between Protea and NUM were held from 9 May 2019
whilst the affected
employees remained suspended. The last
consultations before this application was launched was held on
28 May 2019, when
the parties appeared to have reached an
impasse.
NUM’s
submissions:
[3]
NUM’s seeks to interdict Protea from dismissing the affected
individuals
for operational reasons pending the determination of the
lawfulness of Harmony’s demand for the removal of those
employees;
the lawfulness of the contractual clauses
inter partes
upon which such demand is based, and the lawfulness of the
retrenchment processes embarked upon by Protea. In this regard, NUM
contends that;
3.1
The processes upon which the affected employees are subjected are
unlawful and
not in accordance with the provisions of the LRA, and
that Protea and Harmony’s conduct is not authorised by any law,
as
it was procedurally unfair, irrational, arbitrary and capricious.
3.2
It is unlawful for Protea and Harmony to structure and arrange their
contractual
rights in a way which undermines the fundamental
protections guaranteed to the employees by the LRA.
3.3
To the extent that the right not to be unfairly dismissed is
constitutionally
protected, this Court is not bound by contractual
limitations created by the parties through an agreement, when that
agreement
conflicts with employees’ fundamental rights.
3.4
Any clause in a contract between Protea and Harmony which allows the
latter
to undermine the rights of employees ought to be declared
unlawful and against public policy. Accordingly, Protea should not be
allowed to invoke such clauses to justify a dismissal of the affected
employees.
3.5
The fact that the dispute involves a contractual relationship which
is not an
employment relationship does not mean that the Court should
not grant the relief sought if the issue in dispute concerns the
rights
of employees not to be unfairly dismissed. In these
circumstances, the Court is entitled to deal with the matter under
the provisions
of section 157 of the LRA, thereby developing its
jurisdiction to give effect to the LRA.
3.6
Protea in this case entered into a contractual relationship with
Harmony without
ensuring that its employees’ security of
employment was guaranteed in a way consistent with the right to fair
labour practices,
and the Court should grant a protection
mandamus
against the unlawful conduct of Protea and Harmony, as they further
failed and/or neglected to comply with the LRA in terminating
or
attempting to terminate the employment contracts of the affected
employees.
3.7
On the
authority of
TSI
Holdings (Pty) Ltd & others v NUMSA
[2]
,
an illegal demand to have the affected employees removed from the
site or to have them dismissed on operational requirements cannot
be
used to disguise the true reason of the dismissal.
Evaluation:
[4]
To the
extent that NUM seeks interim relief declaring certain portions of
the commercial contracts between Protea and Harmony unlawful,
the
requirements for urgent interdictory relief are trite. Thus, NUM must
establish
that it has a
prima
facie
right even if it is open to some doubt; a reasonable apprehension of
irreparable and imminent harm to the right if an interdict
is not
granted; that the balance of convenience favour the granting of the
interdict, and that it has no other reasonable remedy
[3]
.
[5]
Protea opposed the granting of relief on a variety of grounds,
including
that the matter is not urgent; that the actual relief
sought by NUM is in effect final in nature and also not competent;
that the
Court lacks jurisdiction to dictate contractual terms to
commercial parties; and further that the requirements of interim
relief
have not been satisfied.
[6]
Harmony joins cause with Protea’s submissions in contending
that
the matter is not urgent. It further opposed the application on
the grounds that it is not an employer of the affected employees
and
that the provisions of section 198A of the LRA did not apply to the
circumstances of the case. It further contends that NUM
has no basis
to seek any relief against it; that NUM has alternative remedies in
respect of any complaints surrounding the retrenchment
process; and
further that its joinder to these proceedings was entirely frivolous
and without merit, and called for a costs order.
[7]
The
principles surrounding urgency under Rule 8
[4]
of the rules of this Court are well-established. A determination of
whether a matter deserves the urgent attention of this Court
entails
a considerations of whether the reasons that make the matter urgent
have been set out succinctly in the founding papers
and secondly,
whether the applicant seeking relief will not obtain a substantial
relief at a later stage.
[8]
Thus, the
basis for allowing parties to dispense with the Rules of Court
relating to time periods is to prevent the occasioning
of an
injustice and involves the balancing of this consideration with that
of the rights of parties to a considered opportunity
to place their
cases before the court
[5]
.
[9]
The provisions of Rule 8 of the Rules of this Court were interpreted
in
Jiba v Minister: Department of Justice and Constitutional
Development and others
as follows;
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to which
the
ordinary applicable rules should be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is
not
entitled to rely on urgency that is self-created when seeking
deviation from the rules”
[6]
.
[10]
This application was launched on 31 My 2019. NUM contends
that the matter is
urgent on the basis that consultations were held
on 9 and 22 May 2019, and had deadlocked on 28 May 2019
when
Protea indicated that without a response to its proposals on
whether its members accepted the alternative positions or not, it
(Protea) would proceed to arrange consultations on retrenchment
packages, and thus effectively proceeding with the terminations.
NUM
further submitted that it is the respondents that have created the
urgency by attempting to terminate the employment services
of the
affected employees without any lawful basis. It further claims
urgency on the basis of the hardship to follow on employees
should
the terminations be proceeded with.
[11]
Protea denies that the matter is urgent, and contends that;
11.1 Since 2004, the
applicants knew and understood what the request for an employee to
undergo a polygraph and the failure or refusal
to undergo such
polygraph would result in;
11.2 NUM has already
engaged Protea in the retrenchment process since 9 May 2019,
and this application ought to have been
brought on or after
9 April 2019 when notices to undertake the polygraph test
were issued; or when the affected employees
were suspended on
18 April 2019, or on 26 April 2019 when the
section 189A notices were issued.
[12]
I am in agreement with the respondents’ contentions that this
matter is not urgent,
and that in fact, the urgency claimed by NUM is
self-created. My reasons in this regard are as follows;
12.1 The commercial
agreements between the respondents have been in place since 2004, and
the contracts of employment between Protea
and the affected employees
have equally been in place over a period of time.
12.2 The events that led
to a position where Protea and NUM are engaged in retrenchment
consultations arose from the investigations
into incidents of theft
at the Target site in March 2019, and the subsequent
consultations with NUM and the affected employees
held on
9 April 2019 in regards to the necessity to undergo the
polygraph test.
12.3 On or about
9 April 2019 the affected employees were notified of the
tests and nothing was done by NUM. Equally so,
when the employees
resolved not to undertake the test with the express acknowledgement
and concurrence of NUM on 19 April 2019,
nothing was done
to approach this Court.
12.4 The fact that only 7
out of 19 of NUM members refused to undertake the polygraph testing
speaks volumes, and the motivation
for bringing this application on
an urgent basis is blurred. Be that as it may, following their
suspension and the subsequent issuing
of section 189 notices, NUM did
nothing, and instead, voluntarily participated in that process.
12.5 It was only when NUM
could not get an agreement in respect of alternative positions that
it suddenly thought of approaching
this Court.
[13]
NUM has not explained the delay between when the affected members
were notified to undertake
the test, and the date that it approached
this Court for intervention. In the light of the above, it cannot
therefore be correct
as argued on behalf of NUM that the urgency
arose on 28 May 2019 with the last meeting of
consultations. NUM was willing
to engage with Protea in the section
189 of the LRA consultations, and the urgency of the matter cannot
clearly arise on the basis
that NUM could not secure an agreement on
matters related to that process.
[14]
Furthermore, as shall be demonstrated in this judgment below, this
application appears
to be premature in that as things stand, the
individual employees remain in Protea’s employ, as no dismissal
for whatever
reason has been effected. In fact, on Protea’s
version, it has no intention of terminating the services of the
individual
employees, and that terminations can only take place when
the employees unreasonably refuse to consider alternative deployments
suggested to them.
[15]
To the extent that NUM has not established the grounds upon which
this Court should accord
the matter any urgency, it follows that the
matter ought to be struck off the roll.
[16]
Striking the matter off the roll however implies that it will find
its way back on the
ordinary roll, and it is my view that this
application ought to be disposed of on the merits.
[17]
The first issue is whether Harmony ought to have been joined to these
proceedings. Protea
and Harmony contend that the latter ought not to
have been joined as it is not the employer of the individual
employees. Throughout
its pleadings and heads of argument, NUM had
contended that Protea was a labour broker. It was only during
argument that it was
conceded that Protea is indeed not a labour
broker. Other than that issue, it is common cause that Harmony is
merely a client of
Protea, and that it has no employment relationship
with the affected employees. In the light of the facts of this case,
clearly
there was no basis for Harmony to be joined, particularly in
the light of the failure of NUM to demonstrate any clear right to the
relief it seeks against Harmony or Protea for that matter as shall be
demonstrate further in this judgment.
[18]
A second
consideration is that of jurisdiction. It was submitted on behalf of
Harmony that NUM’s case is not grounded in the
provisions of
section 5(4) of the LRA
[7]
, and
it was not clear on what basis a declaration of unlawfulness was
sought.
[19]
NUM however
relied on the provisions of section 157(2)(a) of the LRA
[8]
in bringing this application, and contends that the application
involves matters of constitutional importance. Reliance by NUM
was
placed on
Nape
v INTCS Corporate Solutions (Pty) Ltd
[9]
for the proposition that the fact that the dispute involved two
parties to a contractual relationship, which is not an employment
relationship, did not imply that this Court could not grant
appropriate relief, as the issue in dispute concerned the employee’s
rights not to be unfairly dismissed. In this regard, it was contended
that this Court is entitled under section 157of the LRA to
develop
its jurisdiction to give effect to that Act
[10]
.
[20]
The
provisions of section 157(2) of the LRA have received attention in
numerous decisions before the Constitutional Court
[11]
.
The Labour Appeal Court also pronounced on these provisions, and
observed that if the court has the jurisdiction it would have
the
power to grant an appropriate remedy and that because this Court has
the power to grant the remedy, it does not mean that it
has
jurisdiction to grant the remedy
[12]
.
[21]
Significant with the pronouncement however in
Merafong City Local
Municipality v South African Municipality Workers Union ("SAMWU")
and Another
is that it was specifically stated that;
“
Section
157(1) is more of a confirmatory and reference section. It is not
itself a primary source of jurisdiction. Instead, it confirms
that
the Labour Court has jurisdiction in matters where the Labour Court
has exclusive jurisdiction in terms of the LRA. It also
confirms that
the Labour Court has jurisdiction where other legislation provides
that a matter has to be determined by the Labour
Court. Its main
purpose, as derived from its wording within the context of the entire
section 157, appears to be to delineate those
instances in which the
Labour Court would have exclusive jurisdiction. Section 157(2), on
the other hand, delineates those instances
where the Labour Court
would have concurrent jurisdiction with the High Court.”
[13]
[22]
Flowing from the above authorities, the first observation to be made
is that any reliance
on the provisions of section 157(2) of the LRA
is clearly misplaced, as there exists no employment relationship
between the affected
employees and Harmony. The mere fact that
reference to
any
alleged
or threatened violation of any fundamental right entrenched in
Chapter 2 of the Constitution arising from labour relations
is made in those provisions does not imply that this Court will
ordinarily assume jurisdiction over the matter. A case still needs
to
be made outlining the basis upon which it is alleged that there is
threatened violation of fundamental rights flowing from the
commercial contracts between Harmony and Protea.
While it is
true that the current dispute arose from employment, it does not
follow without more, that this fact alone entitled
NUM to the relief
that it seeks.
[23]
To the
extent that NUM contended that the contractual arrangements between
Harmony and Protea undermined the fundamental rights
of its members,
the starting point is that the fact that a term in a contract is or
may be unfair or may operate harshly does not
by itself lead to the
conclusion that it offends the values of the Constitution or is
against public policy. Equally so, it is
trite that it is not for the
courts to make a new agreement for the parties
[14]
.
[24]
Similarly
in this case, it was correctly submitted on behalf of the respondents
that this Court lacks jurisdiction to strike down
contractual
arrangements between an employer and a client, particularly since the
alleged unlawfulness or illegality in these arrangements
have not
been substantiated. The facts of this case are materially different
to those in
Nape
v INTCS Corporate Solutions (Pty) Ltd.
[15]
Nape
,
which NUM heavily relied upon. That case dealt with the question of
the right of a labour broker to rely on the provisions of
section 189
of the LRA to justify termination of an employment relationship after
the client, for
unfair
reasons
,
insisted that an employee be removed from its premises. There can be
no doubt that the Labour Court’s conclusions in
Nape
,
that an agreement between a labour broker and the client, which
provided the client with the power to remove the employee from
its
premises for
any
reason whatsoever
,
was against public policy and an unlawful breach of the employee’s
right to fair labour practices in terms of the LRA, were
correct.
That approach is in line with that in
Lebowa
Platinum Mines Ltd v Hill
[16]
,
which set out the principles which an employer should follow when
faced with a demand for the dismissal or removal of an employee
by a
client.
[25]
The
distinguishing factors are however that unlike in
Nape
,
Protea is not a labour broker as readily conceded on behalf of NUM.
The second is that based on the approach in
South
African Transport and Allied Workers Union v Khulani Fidelity
Security Services
[17]
upon which Protea relied, there is nothing unfair, unlawful, or
irrational, where there is an agreement such as in this case, which
entitled Harmony to request the removal of an employee from its site,
if that employee posed a risk to its operations. The agreement
between Protea and Harmony was designed for operational reasons,
namely to ensure that only people of proven integrity could be
maintained at its sites.
[26]
As it was
stated in
Nape
,
public policy imports the notions of fairness, justice and
reasonableness, and would preclude the enforcement of a contractual
term if its enforcement would be unjust or unfair
[18]
.
In the same vein, the Court in
Nape
appreciated that it was axiomatic that where the demand of the client
for the removal of the employee was lawful and fair, the
employer
(including a labour broker) may properly rely upon the provisions of
section 189 of the Act
[19]
.
[27]
Harmony as already indicated is in the business of producing gold
bearing material. It
is a high risk operation requiring it to be
assured that employees on its site are persons of impeccable
integrity, who are there
to protect its interests. In circumstances
where not only based on its agreement with Protea, but also where
Protea has concluded
contracts which binds its employees to the
highest standard of honesty and integrity, and to subject themselves
to valid and fair
procedures to check on whether they adhere to
expected levels of integrity, I fail to appreciate the reason why it
would be deemed
unfair, if those employees are removed from Harmony’s
site, when they act in breach of their own contracts of employment,
and refuse to undertake polygraph test. The employees cannot complain
of unlawfulness or irrationality in a vacuum, without demonstrating
how a request to have them removed, rather than being dismissed, is
unlawful.
[28]
The
difficulty that NUM has in this case is that it seeks to have
employees who not only breached their contracts of employment
(or
were insubordinate
[20]
), but
also whose integrity is suspect, to be retained at Target site,
notwithstanding the operational risks that Harmony has been
exposed
to following from investigations done into the theft and syndicates
aligned to those incidents. Protea could easily have
charged and
dismissed the affected employees for breach of their contract or
insubordination as they refused to subject themselves
to polygraph
tests. Other employees, who are NUM members had complied with the
request and were exonerated. I therefore fail to
appreciate how that
request can be deemed to be fair and lawful in respect of some, but
not all of the employees.
[29]
To reiterate, there is nothing illegal, unfair or unlawful, in the
contractual arrangements
between Protea and Harmony that entitles
Harmony to request the removal of employees for operational reasons,
especially in a high
risk environment such as production of gold
bearing material. In any event, the contract between Protea and
Harmony does not stipulate
that employees must be dismissed, as
clearly that is the preserve of Protea. Equally so, there is nothing
unfair, where Protea
as it has done in this case, embarked on a
process of removing the affected employees from Target site as by
virtue of their very
conduct, they continue to pose an operational
risk to its client Harmony, and further where rather than dismissing
those employees
for misconduct, it chose an alternative route of
redeploying them through a process under section 189 of the LRA. If
NUM is unhappy
with proceedings under the provisions of section 189
of the LRA, it has alternative remedies.
[30]
As matters stand, the affected employees have been removed from the
Target site, and lawfully
so as they have refused to subject
themselves to polygraph testing. They have not been dismissed.
Furthermore, there is nothing
in the contracts of employment between
Protea and the affected employees that states that they will be
dismissed if they refuse
to undertake polygraph testing. Instead, as
in
Khulani
, a provision is made for a retrenchment process to
be embarked upon. NUM despite running to this Court for intervention,
has engaged
Protea in that consultation process. It is apparent that
with this application, NUM sought to circumvent the provisions of
section
189A(13) of the LRA. To the extent that it has done so,
if it still not satisfied with the final outcome of that process, the
provisions
of section 191 of the LRA are available to it to take the
matter further.
[31]
In the end, other than the fact that NUM has not satisfied the
requirements for urgent
intervention of the Court in this matter, it
has also not satisfied the requirements of the relief it seeks. NUM
has not established
a clear right, particularly a right enjoyed by
the affected employees to remain at Target site or to have certain
portions of the
commercial contract between Protea and Harmony
declared unlawful or contrary to public policy. These arrangements
between Protea
and Harmony do not in any way encroach on the
employees’ constitutional rights to fair labour practices. Any
irreparable
harm contended in this case if interim relief is not
granted is clearly contrived, as the affected employees remain
employed despite
their conduct. It is my view that if at the end of
the retrenchment process they find themselves without a job, that
would be purely
as a consequence of their own conduct. This is
so in that the other employees have subjected themselves for
polygraph testing
and remain employed. Furthermore, the balance of
convenience cannot favour the granting of the order sought where the
affected
employees remain to pose an operational risk to both Harmony
and Protea through their refusal to subject themselves to a simple
test that would have exonerated them. To the extent that the
retrenchment process will reach a point of their dismissal, they have
alternative remedies at their disposal
[32]
Having had regard to the requirements of law and fairness insofar as
a costs order is concerned,
it was correctly submitted on behalf of
Harmony that since it has no employment relationship with the
affected employees, its joinder
to these proceedings was unwarranted.
Further in the light of the conclusions reached that NUM had not
established urgency or satisfied
the requirements of the relief it
seeks, it is also my view that this application was ill-conceived. In
the circumstances, I see
no reason why the respondents should be
burdened with the costs of this application.
[33]
Accordingly, the following order is made;
Order:
1. The Applicant’s
urgent application is dismissed.
2.The Applicant is
ordered to pay to the First and Second Respondents, the costs of this
application.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: W
Sibuyi SC, instructed by Finger Phukubye INC
For
the First Respondent: S
Lancaster, of Lancaster Kungoane Attorneys
For
the Second Respondent: J
Olivier of Webber Wentzel
[1]
Act 66 of 1995 (as amended)
[2]
[2006]
7 BLLR 631 (LAC)
[3]
See
Setlogelo
v Setlogelo
1914
AD at 221;
Webster
v Mitchell
1948
(1) SA 1186
W
[4]
Which provides;
(1)
“A party that applies for urgent relief
must file an
application that complies with the requirements of rules 7(1), 7(2),
7(3) and, if applicable, 7(7).
(2)
The affidavit in support of the application must
also contain-
(a)
the reasons for urgency and why urgent relief is
necessary;
(b)
the reasons why the
requirements of the rules were not complied with, if
that is the
case; AND
(c)
if a party
brings an application in a shorter period than that provided
for in
terms of section 68(2) of the Act, the party must provide reasons
why a shorter period of notice should be permitted”
[5]
See
National
Police Services Union v National Commissioner of the National Police
Services and Others
(1999)
20 ILJ 2408 (LC);
Commissioner
For the South African Revenue Services v Hawker Air Services (Pty)
Ltd and Another
Case no: 379/2005 at para 9;
Vermaak
v Taung Local Municipality
(JR315/13) [2013] ZALCJHB 43 (12 March 2013)
[6]
(2010) 31 ILJ 112 (LC) at para 18
[7]
Protection
of employees and persons seeking employment
(1)
…
(2)
…
(3)
…
(4)
A provision in any contract, whether
entered into before or after the commencement of
this
Act
, that directly or indirectly
contradicts or limits any provision of section 4, or this section,
is invalid, unless the contractual
provision is permitted by
this
Act
.
[8]
157.
Jurisdiction of Labour Court
(1)
Subject to the Constitution and
section 173, and except where
this Act
provides otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of
this
Act
or in terms of any other law are
to be determined by the Labour Court.
(2)
The Labour Court has concurrent
jurisdiction with the High Court in respect of any alleged or
threatened violation of any fundamental
right entrenched in Chapter
2 of the Constitution of the Republic of South Africa, 1996, and
arising from -
(a)
employment and from labour
relations;
[9]
[2010] ZALC 33
; (2010) 31 ILJ 2120 (LC) ;
[2010] 8 BLLR 852
(LC) at
para 79
[10]
See
also Nape at para 80, where it was held that;
“
In
terms of the judgment in Gcaba v Minister for Safety and
Security & others
[2009] 12 BLLR 1145
(CC) this Court is
entitled under section 157 to develop its jurisdiction to give
effect to the Act. The court held as follows:
“
Section
157(2) confirms that the Labour Court has concurrent
jurisdiction with the High Court in relation to alleged or
threatened violations of fundamental rights entrenched in Chapter
2 of the Constitution and arising from employment
and labour
relations, any dispute over the constitutionality of any executive
or administrative act or conduct by the state in
its capacity as
employer and the application of any law for the administration of
which the minister is responsible. The
purpose of this
provision is to extend the jurisdiction of the Labour Court to
disputes concerning the alleged violation of any
right entrenched in
the Bill of Rights which arise from employment and labour relations,
rather than to restrict or extend the
jurisdiction of the High
Court. In doing so, section 157(2) has brought employment
and labour relations disputes that
arise from the violation of any
right in the Bill of Rights within the reach of the Labour Court.
This power of the Labour Court
is essential to its role as a
specialist court that is charged with the responsibility to develop
a coherent and evolving employment
and labour relations
jurisprudence. Section 157 (2) enhances the ability of the Labour
Court to perform such a role.
Therefore, section
157(2) should not be understood to extend the jurisdiction of
the High Court to determine issues
which (as contemplated by section
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 section 157(2) (a), (b)
and (c)."”
[11]
See
Gcaba
v Minister of Safety and Security
2010 (1) SA 238
(CC);
Fredericks
and Others v MEC for Education and Training
Eastern
Cape and Others
[2001] ZACC 6
;
2002
(2) SA 693
(CC);
Chirwa
v Transnet Limited and Others
[2007]
ZACC 23
;
2008 (4) SA) 367
(CC);
NEHAWU
v University of Cape Town and Others
2003
(3) SA 1
(CC);
Public
Servants Association obo Ubogu v Head of the Department of Health,
Gauteng and Others, Head of the Department of Health,
Gauteng and
Another v Public Servants Association obo Ubogu
[2017] ZACC 45
;
2018 (2) BCLR 184
(CC); (2018) 39 ILJ 337 (CC);
[2018] 2 BLLR 107 (CC); 2018 (2) SA 365 (CC)
[12]
See
Booysen
v Minister of Safety and Security and others
(2011)
32
ILJ
112
(LAC) at para 36;
Merafong
City Municipality v SAMWU
[2016]
8 BLLR 758
(LAC) at para 37
[13]
At
para 29
[14]
See
Mohamed's
Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd
2018 (2) SA 314
(SCA) at para 30, and also at para 22, where it was
held that;
‘
Before
these arguments are considered, it is necessary to place the issue
in its proper perspective with regard to the legal principles
governing contractual obligations. This court in
Sasfin
(Pty) Ltd v Beukes
(1989) (1) SA 1
(AD) said:
‘
The
power to declare contracts contrary to public policy should,
however, be exercised sparingly and only in the clearest of cases,
lest uncertainty as to the validity of contracts result from an
arbitrary and indiscriminate use of the power. One must be careful
not to conclude that a contract is contrary to public policy merely
because its terms (or some of them) offend one’s individual
sense of propriety and fairness.
[15]
(2010) 31 ILJ 2120 (LC); [2010] 8 BLLR 852 (LC)
[16]
(1998) 19
ILJ
1112
(LAC)
[17]
(2011)
31 ILJ 130 (LAC)
[18]
At
para 53
[19]
At
para 73
[20]
See
Gemalto
South Africa (Pty) Ltd v CEPPWAWU obo Louw and others
(JA
54/14)
[2015] ZALAC 36
;
[2015] 11 BLLR 1100
(LAC); (2015) 36 ILJ
3002 (LAC)