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[2019] ZALCJHB 363
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Dlamini and Others v Sedtrade and Another (J183/2018) [2019] ZALCJHB 363 (12 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Of
interest to other Judges
Case
no
J 183/2018
In
the matter between
LEBOHANG JOSHUA
DLAMINI & 7 OTHERS
Applicants
and
SEDTRADE
TSUBANE
KIEWIT SOLO
First Respondent
Second
Respondent
8
November 2019
Delivered:
12 November 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application for condonation for the late referral of a
statement of case.
The application makes reference to a letter issued
on 15 January 2018 proposing a meeting with the respondents and a
subsequent
visit to the office of the first respondent. These
engagements appear to have been directed at an attempt at an amicable
resolution
of the dispute between the parties. The applicants submit
that the late filing of the statement of claim was not done
intentionally
or deliberately, but solely for the purpose of
affording the respondent’s ample time to resolve the matter
amicably. The
applicants aver further that the referral is five days
late and that they have good prospects of success.
[2]
The court file is incomplete and the statement of case is not
attached to nor recorded
on the index. That notwithstanding, the
first respondent confirms that the statement of case was served, with
some pages missing,
on 5 February 2019 When the matter was called, I
enquired of the applicant’s representative when the certificate
of outcome
was issued by the CCMA in terms of s 135 (5) of the LRA.
The enquiry was based on the principle established by the
Constitutional
Court in
National Union of Metalworkers of SA v
Intervalve (Pty) Ltd
(2015) 36
ILJ
363 (CC) in which the
court held that in any dismissal dispute, this court has no
jurisdiction if the dispute was not referred
to conciliation. At
paragraph 108 of the judgment, Zondo J (as he then was) noted that
this court does not even have a discretion
to adjudicator dismissal
dispute that has not been referred to conciliation. Mr Tlali, who
represented the applicants, conceded
that in so far as the
applicant’s claim is one of unfair dismissal, there had been no
referral to the CCMA. That being so,
it is manifestly clear that this
court lacks jurisdiction to entertain any claim of unfair dismissal
made by the applicants. Mr
Tlali urged me to refer the matter to the
CCMA for conciliation. That is not a course of action that is open to
the court. The
applicants are required to make a proper referral in
terms of the LRA and to the extent that the referral will be made
outside
of the prescribed time limit, it will be necessary for them
to apply for condonation. That is a matter to be dealt with by the
CCMA should the applicants elect to refer a dispute but for reasons
that appear here under it does not appear to me that their prospects
of success in any application for condonation are good, if any
prospects of success exist at all.
[3]
This brings me to the balance of the applicant’s claim which I
have been able
to discern, with some difficulty, from the terms of
the statement of case. The applicants describe themselves as parties
to a joint
venture with the second respondent. What they seek, in
terms of paragraph 7 of the statement of case, is the unconditional
reinstatement
of the joint venture (to the exclusion of the second
respondent, payment of outstanding wages in full to the joint
venture, payment
of’ lost wage’, compliance
with ‘relevant legislation is of the RSA’ and alternative
relief.
In the confirmatory affidavits, the individual
applicants deposed to the fact that they are all directors, co-
directors
of companies and members of Glasgow operations and that
those companies were one of a number which formed the joint venture.
There
are no averments in the statement of case that establish any
form of employment contract or employment relationship between the
parties. What there is a written joint venture agreement that was
entered into between the applicants themselves. The relief sought
by
the applicants extends to sought payments to the joint venture, and
the non-payment of mandatory requirements such as safety
payments.
The applicants also claim a site establishment payment and make
reference to work measurement sheets all of which point
to a dispute
that is not one capable of description as employment-related It is
clear from the that the applicants approach this
court not in their
capacity as employees, but as members of a joint venture in a
commercial dispute.
[4]
This conclusion is reinforced by the terms of a ‘proposal of
appointment’
and ‘acceptance of appointment’ handed
up when Tlali’s right of appearance was questioned. In terms of
this document,
signed by each of the individual applicants in respect
of companies that they represent, Tlali is appointed as the human
resources
manager and legal adviser on labour matters. The proposal
is accepted by Tlali, on the basis that since they are small
enterprises’
they would be entitled to avail themselves of the
use of his office building and tools to ‘run your project
successfully’.
The LRA confers jurisdiction on this court in
respect of matters that in terms of the LRA or any other law or to be
determined
by the court. Generally speaking, the court has
jurisdiction in employment related disputes, i.e. disputes between
employers and
employees. (The exceptions to the general proposition
not relevant for present purposes.)
[5]
This court does not have jurisdiction over commercial disputes
between joint ventures
and their commercial partners. I
understood Tlali to accept this, but he submitted that this court
ought to refer the matter
to the High Court. It is not for this court
to transfer a matter to the High Court, especially not on the basis
of the ineptly
drafted papers that have been filed in this matter.
The High Court has its own rules and procedures relevant to the
issuing of
process. The appropriate order is for the application to
be dismissed for lack of jurisdiction. In these circumstances and to
the
extent that there appears to be on the roll an application to
condone the late filing of the first respondent’s response to
the statement of claim, it is not necessary to make any ruling in
that regard.
[6]
Finally, in relation to costs, the first respondent sought an order
for costs against
Tlali. Section 162 (3) of the LRA provides that the
court may order costs against a party to a dispute or against any
person who
represented that party in proceedings before the court.
Tlali acted as the representative of the applicants. He has required
the
first respondent to oppose the application for condonation, and
to be present in court in circumstances where the application was
entirely misguided and the papers so poorly drafted that the court
had considerable difficulty understanding precisely what it
was that
was sought to be condoned in what circumstances. This is the epitome
of a hopeless case, one that constitutes an abuse
of the process of
this court. All of the individual applicants, so the court was
advised, are indigent. Tlali on the other hand
is on the face of it a
man of some means. heading as he does what he refers to as the ‘Tlali
Group of Companies’ with
its head office in Clocolan, and
offering a variety of services including what is described as a
‘general legal advice service’.
Tlali manifestly has no
right of appearance in this court, yet he persisted with spurious
submissions as to why he should be heard.
Ironically, it was his
submission that he was employed by the applicants as their human
resources manager that gave the lie to
any pretence that they were
employees who had been wronged in an employment-related dispute. The
right of appearance in this court
is strictly regulated by the LRA.
It is a right that is often abused and increasingly the subject of
ingenious attempts to circumvent
the statutory limitations. Tlali is
no more than a businessman who has egregiously fabricated an
employment relationship to secure
the right of appearance. In
these circumstances, and in the exercise of the broad discretion
conferred on the court in terms
of s 162, it seems to me that the
interests of the law and fairness are best served by an order that
Tlali be ordered to pay the
costs of these proceedings in his
personal capacity.
I
make the following order:
1. The
application is dismissed for want of jurisdiction, with costs, such
costs to be paid by Mr ME Tlali in
his personal capacity.
André
van Niekerk
Judge