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[2019] ZALCJHB 250
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Mariga v Global Supply Chain Services (Pty) Ltd (JS393/18) [2019] ZALCJHB 250 (20 September 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JS 393/18
In
the matter between:
NGOYI
RAY
MARIGA
Applicant
and
GLOBAL
SUPPLY CHAIN SERVICES (PTY) LTD
Respondent
Heard:
05 September 2019
Delivered:
20 September 2019
JUDGMENT
MABASO,
AJ
Introduction
[1]
At the heart of this application lies a claim for the breach of a
settlement agreement
(the agreement) entered into between the
applicant and the respondent following the termination of the
employment contract that
existed between the parties until 30 August
2017. The applicant seeks an order, int
er alia
, that the
agreement is still valid and enforceable, that the respondent be
ordered to pay him an amount R860 000.00, the respondent
must return
to him a laptop and the respondent to furnish him with the service
certificate. The trial was scheduled to commence
on 5 September 2019.
Jurisdiction
[2]
The respondent raised a special plea in that “ It is denied
that this honourable
Court has jurisdiction to declare that the
Settlement Agreement has not been validly cancelled and/or grant
relief sought by the
applicant and/or hear the applicant’s
claim/s generally” . Before this Court, Mr Lennox argued that
this Court
lacks jurisdiction as it was not specifically
pleaded in the applicant’s case . The respondent delivered
heads of argument
in support of its special plea ,however, the
applicant provided no heads of argument on this point. In support of
its point the
respondent contends that the applicant does not state
in the Statement of case on what “authority” this Court
has jurisdiction
to entertain the claim. The Constitutional Court
Gcaba v
Minister of Safety and Security and Others
[1]
explained the word jurisdiction as one which should be understood as
power or competence of the Court to hear and determine issues
between
the parties.
[3]
The respondent, further, contends that section 158 of the Labour
Relations Act 66
of 1995(the LRA) may be a possible source of
jurisdiction, however, the reliance of any provision of a section
would need to be
pleaded and tested. In support of this contention
this Court was referred to
SACWU
v Engen Petroleum Ltd and Another
[2]
.
This
Court was further advised that the applicant has not relied on the
provisions of section 77(3) of the Basic Conditions of Employment
Act
[3]
(the BCEA). It is also
contended by the respondent that the applicant has failed to state in
its papers as to which section it
relies on and it was urged that the
supporting authority is
Schoeder
and another v Pharmacare Ltd t/a Aspen Pharmacare
[4]
,
where
Van Niekerk J held thus:
"
It
is well-established that the court’s jurisdiction is to be
determined on the basis of the applicant’s pleadings.
In the
referral made by the applicants, I find no reference to any provision
of the LRA that confers jurisdiction on this court
to determine the
validity of a settlement agreement, in the context of a termination
of employment
.
[5]
To the
extent that the relief sought by the applicants is the setting aside
of the agreement, this court has jurisdiction to make
a settlement
agreement an order of court in defined circumstances. (See s 158(1)
(c).) The court is not empowered, without more,
to enquire into their
validity. The court may determine whether an agreement induced by
duress or misrepresentation ought to be
set aside in the context, for
example, of an alleged dismissal for a reason related to the
employer’s operational requirements.
But the court exercises
jurisdiction in that instance by virtue of the employee asserting a
reason for dismissal that falls within
the court’s
jurisdictional ambit”.
Further, the court has
jurisdiction in terms of s 77 (3) of the BCEA in respect of matters
that arise from employment contracts.
This is not the basis on which
the present claim has been referred. Whether a dispute about the
validity of an agreement that has
the effect of terminating
employment is a matter that arises from an employment contract is
therefore an issue that I need decide."
[4]
The applicant argued that this Court has the
necessary jurisdiction to hear this matter. Counsel for
the Applicant
averred that the matter of
Nthite
v Reitzer Pharmaceuticals (Pty) Ltd
[6]
supported his contention.
[5]
This court’s jurisdiction is founded in terms of section 157(1)
of the LRA which
provides that subject to the Constitution Act 108 of
1996 this Court has “
exclusive jurisdiction in respect of
all matters elsewhere in terms of this Act or in terms of any other
law are to be determined
by (this) Court.
”
[6]
Before this Court, in both pleadings (Statement of case and Statement
of response)
it is common cause that the respondent employed the
applicant and that on or about 30 August 2017 the parties entered
into the
agreement, wherein it was agreed upon that:
“
2.2
have agreed to the mutual termination of the employment relationship
with effect from 30 August
2017."
[7]
The agreement further states that the applicant has elected to resign
from his employment
with the respondent. The agreement is a full and
final settlement, as paragraph 8.1 provides that :
“
8.1
Save for the obligations contained in this agreement, this agreement
is in full and final settlement
of all and any claims which the
employee may have against the company or any entity within the supply
chain services group of Companies
including its subsidiary companies
and sister companies, whether such claims arise from contract,
delict, operation of law or otherwise
including, but not limited to,
any claims that the employee may have arising from his contract of
employment or the termination
of the employment relationship.”
[8]
In the High Court, a party may institute an action by way of simple
or combined summons.
A simple summons is used in respect of a
liquidated claim a plaintiff may deliver a declaration, and in
respect of combined summons
, particulars of claim have to be
attached. However, in this Court, parties do not have such choice and
will have to state their
case in a document called a referral.The
applicant herein has opted to approach this Court by way of an
action, in terms of Rule
6 of the Rules of the Labour Court. This
Rule amongst others provides that an applicant has to clearly and
concisely state material
facts and legal issues that arise from the
material facts.
[9]
As the statement of case is a pleading in this Court, there are
specifics as to what
is required be set out in it. One has to
remember that the purpose of pleadings is to bring to the attention
of the Court and the
other party as to what the issue is so that the
other party can respond to it and the Court can then determine that
dispute. As
Rule 6 requires that a party must plead
"a
clear and concise statement of legal issues that arise from the
material facts”,
it is for the Court to determine whether it has jurisdiction to hear
the matter or not. Therefore, it has to concentrate on the
substantial issues between the parties. The late Steenkamp J, in
Abrahams
v Drake & Scull Facilities Management (SA) (Pty) Ltd and
another
[7]
,
held thus:
"it concerns a
contract of employment: the respondent has breached its terms of
amending it unilaterally, and the applicant
seeks specific
performance of the contract. Maybe the applicant would have done
better, the attorney to spell it out, but the fact
that she does not
allege incident with particularly that this Court has jurisdiction in
terms of section 77(3) does not deprive
the Court of the
jurisdiction."
[10]
In this Court, the parties are not expected to specify as to which
section they rely upon. It
is for the Court to determine as to
whether the matter falls within its jurisdiction or not. I have taken
into account that the
respondent relies on the matter of
Schoeder
supra
in that it urges that the applicant has failed to state
which section he relies upon. I conclude that the reliance on
Schoeder
herein is incorrect, taking into account that Van
Niekerk J did not find that a failure to plead the section of the
relevant legislation
a party relies on will then strip a Court of its
jurisdiction, instead the Learned Judge mentioned this in
passing(which is not
binding). As I have indicated above, the Court
will determine jurisdiction based on the papers before it of its own
accord.
[11]
By way of an example: for the High Court to determine if it has
jurisdiction in a breach of contract
dispute in respect of a cause of
action, it depends on whether the contract was entered into in that
particular jurisdiction of
the High Court, which is commonly referred
to as common law jurisdiction. On other issues, the High Court will
have jurisdiction
to hear the dispute based upon specific legislation
which states that it has jurisdiction to hear such matters. The
Labour Court
will have jurisdiction to hear matters, wherein the
cause of action emanates from a contract of employment, therefore,
its legislative
jurisdiction will be section 77 (3) of the BCEA.
[12]
Therefore, in conclusion it was not necessary for the applicant to
state the exact section he
relies on, taking into account further
that the parties are not expected to plead the law but the legal
issues that arise from
the facts of the case. The Labour Court’s
jurisdiction is determined by the provisions of sections 157 and 158
of the LRA.
However, statutes such as the BCEA, specifically section
77(3) gives this Court jurisdiction to entertain such a matter in
that
this section provides that:
“
The Labour Court
has concurrent jurisdiction with the civil courts to hear and
determine
any
matter concerning
the contract of employment, irrespective of whether any basic
conditions of employment constituted a term of that contract."
[8]
[13]
One of the reliefs sought is the issue of a certificate of service,
and this aspect is dealt
with by section 42 of the BCEA, stating
among other things that at the termination of employment an employer
has to issue a certificate
of service which same has to indicate the
duration of service of an employee, title of the job of the employee,
and brief description
of the work for which the employee was employed
at the date of termination. Therefore, if an employee is not provided
with this
certificate, there is no other way but may approach this
Court in terms of 77(3) of the BCEA because that will be an issue
arising
from an employment contract.
[14]
Considering that the provisions of section 77 (3) of the BCEA refer
to a contract of employment,
either oral or written, there can be no
doubt that the agreement emanates from the contract of
employment, I say this because
under introduction it is stated that
“
the employee is employed by the company as its operational
director
” and “
the parties have agreed to the
mutual termination of employment relationship
” and further
in clause 3, it is stated that “
by affixing his signature
hereto the employee hereby resigns from any and all the offices…
with effect from the termination date
".
[15]
Furthermore, in interpreting section 77(3) of the BCEA, it clearly
applies to
any
dispute that arises from the contract of
employment. Therefore it cannot be said that for this Court to
entertain an issue relating
to an employment contract, same must
still be in place. All that needs to be shown to find jurisdiction is
that there existed an
employment contract and the issues in dispute
arise from the employment contract. Even after termination of the
employment contract,
either of the parties has a right to take legal
action against the other if they allege that the dispute relates to
the employment
contract, as the legislature was clear in stating that
"any matter concerning" the employment contract and not
only an
existing employment contract.
[16]
Therefore it is concluded, taking into account the mutual separation
agreement in question, that
it arises from the contract of
employment, which was terminated. Consequently this Court has
jurisdiction to hear a matter wherein
the applicant alleges that the
other party reneged on a settlement agreement because such dispute
arises from the contract of employment
terminated by the mutual
agreement. The prayers in the referral, should the applicant prove
his case, this Court may grant them.
Thus I find that this Court has
the jurisdiction to hear this matter in terms of these provisions.
[17]
In respect of costs, it is trite that costs do not automatically
follow the results in this Court,
this court has to be guided by the
provisions of section 162 of the LRA. I have taken into account that
the point raised by the
respondent herein is misplaced, and this
resulted to the postponement of the trial which had been set down for
2 days. I conclude
that it will be fair to order costs.
[18]
In the result the following order is made:
Order
1. The special
plea, that this Court has no jurisdiction, is dismissed.
2. The
Respondent is ordered to pay costs.
_______________________
S.
Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: Advocate Maunatlala
Instructed
by : Wakaba and Partners Inc.
For
the Respondent: Advocate M A Lennox
Instructed
by:
Eversheds Sutherland Attorneys
[1]
(2010) 31 ILJ 296 (CC).
[2]
[1999] 1 BLLR 37 (LC).
[3]
No 75 of 1997.
[4]
[2015] 2 BLLR 168
(LC) at para 9.
[5]
Court own underlining.
[6]
Unreported decision. Case number (JS450/13) [2014] ZALCJHB 326 (21
August 2014).
[7]
[2012] 5 BLLR 434 (LC).
[8]
Court emphasis.