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[2020] ZALCJHB 101
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Munengani and Others v Bob Cuts Hair Saloon and Others (J 507/20) [2020] ZALCJHB 101 (23 June 2020)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 507/20
In the matter between:
CAROLINE
MUNENGANI
First Applicant
NONHLANHLA
KHUMALO Second
Applicant
ROBERT
MAKOPO Third
Applicant
OTHER
APPLICANTS Other
Applicants
and
BOB CUTS HAIR
SALON
First Respondent
GERALDINE
KGANAKGA
Second
Respondent
UNEMPLOYMENT INSURANCE
FUND Third
Respondent
DEPARTMENT OF LABOUR
AND EMPLOYMENT Fourth
Respondent
Heard: 12
June 2020 (In Chambers via
Webex Meeting)
Delivered:
This judgment was handed down electronically by circulation to the
parties'
legal representatives by email and publication on the Labour
Court’s website. The date and time for hand-down is deemed to
be on
23 June 2020 at
10h00
JUDGMENT
TLHOTLHALEMAJE, J
[1]
With
this urgent application, the individual applicants seek various
orders including a declaratory that the first and second respondents
are in breach of their contracts of employment in respect of the
non-payment of their salaries for the period February and March 2020.
They further seek an order that the first and second respondents must
declare and make contributions to the third respondent (UIF
Fund) in
accordance with the provisions of Unemployment Insurance Act (UIF
Act)
[1]
, and that the third and
fourth (Department) respondents must essentially ensure that the
first and second respondents meet their
obligations under the UIF
Act, and process any contributions due and to be paid over to them
within two days of this order.
[2]
The first to the fourth respondents have
opposed the application. The first respondent as its name suggests is
a hair salon. The
second respondent (Ms Geraldine Kganakga) is the
sole director of the first respondent. The individual applicants
contend that
they are employed by the first respondent as hair
stylists at its various branches, and were not paid their salaries
for February
and March 2020.
[3]
The matter was initially set down for a
hearing on 9 June 2020. It was postponed to 12 June 2020
in order to
afford the respondents an opportunity to file answering
affidavits and for the applicants to file and serve a replying
affidavit.
Upon the first to fourth respondents having filed and
served their answering affidavits, and the applicants having filed a
rely,
it became apparent that there were various disputes of fact,
related to
inter alia
,
who amongst the individual applicants were still in the employ of the
first respondent, who amongst the individual applicants
were properly
before the Court; whether any amounts in respect of February and
March 2020 salaries were due and payable to
any or all of the
individual applicants; and whether the first respondent had complied
with its obligations under the UIF Act.
[4]
In summary, the individual applicants’
case is that they have not received a salary for the months of
February and March 2020,
and have effectively been unable to
claim any UIF funds as the first and second respondents have not made
any contributions to
those funds. They alleged that despite numerous
attempts to secure their outstanding salaries and further numerous
undertakings
by the second respondent, no payments have been
forthcoming. As a result of unkept promises, they eventually
publicised their dispute
with the first respondent through a
television programme on the ENCA Channel, and had their plight
televised nationally. Their
problems related to their inability to
claim from the UIF was also highlighted.
[5]
In response to the individual applicants’
claim, Kganakga disputed that there were any amounts owing to them,
and had attached
various copies of bank statements as proof that
payments were made in respect of a number of the individual
applicants listed in
paragraph 7 of the answering affidavit. The
employment status of the first and second applicants was also placed
in dispute, with
the second respondent contending that they were no
longer in the employ of the first respondent.
[6]
The
third and fourth respondents in opposing the application had through
an answering affidavit deposed to by the Commissioner of
the
Unemployment Insurance Fund, Mr Teboho Maruping, raised various
points
in
limine
related to the defective nature of the founding affidavit, pointing
out that the affidavit does not comply with the regulations
contemplated in the Justice of Peace and Commissioners of Oaths
Act
[2]
.
[7]
The individual applicants in the replying
affidavit denied that the affidavit was defective despite conceding
that the deponent,
the first applicant) did not indicate the date on
which the affidavit was deposed to before a Commissioner of Oaths.
She contended
that the date appearing on the stamp used by the
Commissioner of Oaths should be accepted as the date on which she and
the Commissioner
of oaths had signed the affidavit.
[8]
It can be accepted that the affidavit is
clearly not in compliance with the regulations as other than the
Commissioner of Oaths’
dated stamp, Munengani had omitted to
indicate the date on which she had deposed to it. That defect
however is not in the
light of the application before the Court, of
such a nature that it can render the entire affidavit defective. As
it was correctly
pointed out on behalf of the applicants, the Court
is in a position to exercise its discretion and permit the
admissibility of
the affidavit.
[9]
In
regards to the jurisdiction, this Court ordinarily under the
provisions of section 77 and 77A of the Basic Conditions of
Employment
Act
[3]
, has
jurisdiction to determine any dispute between an employer and
employee related to the latter’s contract of employment.
To the
extent that central to the individual applicants’ complaints is
that they were owed outstanding salary payments, the
Constitutional
Court in
Amalungelo
Workers’ Union and Others v Philip Morris South Africa (Pty)
Limited and Another
[4]
(
Amalungelo
)
has since interpreted the provisions of section 77 of the BCEA to
mean that since the Labour Court, subject to few specified
exceptions, enjoys exclusive jurisdiction over all disputes and
claims arising from the provisions of that Act, as soon as a dispute
is ripe for litigation, the claimant is entitled to refer it to this
Court without first having to submit disputes to labour inspectors.
Equally so, this Court enjoys jurisdiction under sections 66
and 67 of the UIF Act in respect of all matters in terms of
that Act,
with the exception of any offences in terms of the Act.
Evaluation:
[10]
Other
than the defects complained of, the third and fourth respondents had
contended that this matter did not deserve the urgent
attention of
this Court. The requirements for urgent relief as contemplated in
Rule 8 of the rules of this Court are trite. The
applicant seeking
urgent relief must set out in the founding affidavit, the reasons why
the matter deserves the urgent intervention
of this Court. It is
further trite that urgent relief will not be granted in circumstances
where the applicant can obtain substantive
relief in due course, and
further where it is apparent that the urgency claimed is
self-created.
[5]
.
Aligned to these requirements is that the Court must consider
the
interests of the respondent party, and in particular, the prejudice
the respondent may suffer if the matter is urgently disposed
of
[6]
.
Equally important is the consideration of whether the applicant acted
with the necessary haste in approaching the Court for relief,
which
consideration is aligned to the mitigation of the alleged irreparable
harm should the relief sought not be granted.
[11]
Turning to the facts of this case, it is
trite that in an employment relationship, in the event of a failure
by an employer to pay
wages when they are due, this would amount to
breach of contract. In such a case, the aggrieved employee whose
wages have not been
paid, may either to accept such a breach and
terminate the employment relationship, or hold the employer to the
terms of the contract
and claim the outstanding wages.
[12]
To the extent that the individual
applicants claimed unpaid salaries and approached the Court on an
urgent basis, and further in
the light of the disputed facts, clearly
this matter ought not to have been brought before the Court by way of
motion proceedings,
and this conclusion is linked to the individual
applicants’ alternative remedies, which are clearly at their
disposal, and
more in particular in respect of their claim against
the third and fourth respondents.
[13]
It
is accepted that to the extent that the applicants sought final
relief, the Court ordinarily in the face of disputes of fact
would
apply the principles set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[7]
.
In terms of these principles, final relief may only be granted if the
facts as stated by the respondents, together with
the admitted facts
in the applicant’s affidavits, justify the granting of such
relief. The principles are however subject
to two central exceptions,
i.e., where the denial by a respondent of a fact alleged by the
applicant is not such as to raise a
real, genuine or bona fide
dispute of fact, and second, where the allegations or denials of the
respondent are so clearly untenable
that the court is justified in
rejecting them on the papers, or if respondent’s version is “so
improbable and unrealistic
that it can be considered to be fanciful
and untenable”
[8]
.
[14]
The denials raised by the first and second
respondents can hardly be said to be not real, genuine or mala fide,
and there is no
basis for this court to reach a conclusion based on
the pleadings, that the denials of the first and second respondents
are so
untenable that they ought to be rejected off-hand.
[15]
A further consideration however is that the
applicants’ claim relates to alleged outstanding payments from
February 2020,
and this matter came before the Court on
2 June 2020. The basis upon which urgency is claimed by the
applicants is that
there was a breach of their contracts of
employment, and that they were or are unable to receive financial
relief from the UIF.
They further claimed financial hardship
consequent upon alleged non-payment of their salaries.
[16]
The difficulty however is that to the
extent that the claim arose in February 2020, and since the
individual applicants took
at least three months prior to approaching
the Court, clearly they have not approached the court with the
necessary haste. An assertion
that the applicants have relentlessly
pursued their rights is not sufficient. As of 15 March 2020,
and on their own version,
it was apparent that despite alleged
undertakings by the second respondent, they had still not been paid.
The declaration of the
state of disaster by the President of the
Republic and the implementation of the national lock-down with effect
from 26 March 2020
cannot serve as an excuse for not approaching the
Court earlier as even during the initial stages of the lockdown, this
Court could
accept service of urgent applications. There can be no
doubt that a lack of a salary invariably leads to financial hardship.
At
the same time however, and to the extent that the applicants were
of the view that the matter had reached a tipping point, there
was an
obligation on them to approach the Court on an urgent basis.
[17]
A further difficulty however relates to the
individual applicants’ claims insofar as they seek certain
relief from the third
and fourth respondents. It was the latter’s
contention that the relief sought against them was impractical to
achieve in
the light of the applicable statutory requirements. For
the individual applicants to be able to benefit from the UIF, the
provisions
of section 12 of the UIF Act, PART A are relevant. It must
first be established that the employee seeking to benefit must have
been or was employed, and must satisfy the Commissioner that he/she
had made contributions. In this case, and as already indicated,
there
are glaring disputes of fact as to whether the individual applicants
are still in the employ of the first respondent, and
if so, whether
they have made contributions. Furthermore, there are dispute of fact
in regard to whether such contributions if
made, were forwarded to
the UIF by the first respondent, who it was common cause was
registered with the fund since April 2017.
Furthermore, there
are disputes of fact as to whether the first respondent owes any
contributions to the UIF.
[18]
Aligned to the above is that section 17 of
the UIF Act makes provision for the administration of unemployment
benefits, which requires
any claimant (employees) to make an
application for such benefits in a prescribed form. Once such a claim
was made, it would then
be for a claims officer at the Fund to
investigate and process the application, and in particular,
investigate the claimant’s
any period of unemployment. In the
absence of any such formal application, it would clearly be
impossible for the third respondent
to determine whether any claim
should be successful.
[19]
Central however to the individual
applicants’ difficulty in respect of the relief that they seek
against the third and fourth
respondents is that they have not
anywhere in their papers, pleaded that they are unemployed, and
again, there is no evidence to
suggest that they have approached the
UIF with any applications contemplated under section 17 of the UIF
Act to have their claims
investigated or processed. The fact that the
Fund has conceded that the first respondent is not in good standing
in regards to
its contributions and compliance is neither here nor
there in the absence of a formal application to the Fund in order for
it to
initiate its own investigations in accordance with its own
prescripts. As it was correctly pointed out by Mr Khaukanani on
behalf
of the third and fourth respondents, the Court cannot be used
for the purposes of bypassing the applicable regulations and
processes
of the Fund.
[20]
To the extent that the individual
applicants may have sought and were unable to claim from the UIF
funds made available resulting
from relief granted by national
government under that Fund, a further difficulty arises in that
nowhere in the pleadings is it
stated that they had approached the
first respondent to apply for such relief on their behalf as
required.
[21]
In summary, the applicants have not
satisfied the requirements of urgency. This application was not
brought before the Court with
the necessary haste to justify the
Court’s urgent intervention, and I am further satisfied that
not only would they be able
to obtain substantial redress in due
course, but also that the remedies available to them in the light of
the disputes of fact,
would be much more effective than a Court
order, more particularly in respect of their claims against the first
and second respondents.
Even more appropriate, Mrs Oliphant on behalf
of the first and second respondents had even suggested that a
reconciliation process
be embarked upon by all the parties, with a
view of determining or resolving the factual disputes already
highlighted.
[22]
Even on the principles set out in
Amalungelo,
and
to the extent that the applicants may be entitled to approach this
Court without first having lodged a complaint with the Department
in
respect of unpaid salaries, the Court in the light of the disputed
facts is constrained to make any order their favour. To this
end, it
is appropriate that the individual applicants’ claim against
the first and second respondents be struck off from
the roll, whilst
the claims against the third and fourth respondents ought to be
dismissed for lack of merit, particularly since
the requirements of
the relief they seek have not been met.
[23]
I have further regard to the requirements
of law and fairness in relation to the issue of costs, and I am
satisfied that the facts
and circumstances of this case do not call
for any award of costs to be made.
Order:
[24]
In the premises, the following order is
made;
1.
The applicants’ application in
respect of the relief sought against the first and second respondents
is struck off the roll
on account of lack of urgency.
2.
The applicants’ application and
relief sought against the third and fourth respondents is dismissed.
3.
There is no order as to costs
___________________
Edwin Tlhotlhalemaje
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicants:
Mr M Marweshe of Marweshe Attorneys
For the 1
st
and 2
nd
Respondents:
Mrs J Oliphant, of DMO Attorneys
For the 3
rd
and 4
th
Respondents:
Adv. S Khaukanani, instructed by the
State Attorney
[1]
Act 63 of 2001
[2]
Act
16 of 1993
[3]
Act
75 of 1997. Section 77(3) provides;
"The Labour Court
has concurrent jurisdiction with the civil courts to hear and
determine any matter concerning a contract
of employment,
irrespective of whether any basic condition of employment
constitutes a term of that contract."
Section 77(a)(e)
provides that the Labour Court may make any appropriate order,
including an order –
"making a
determination that it considers reasonable on any matter concerning
a contract of employment in terms of section
77 (3), which
determination may include an order for specific performance, an
award of damages or an award of compensation."
[4]
(CCT20/18)
[2019] ZACC 45
;
2020 (2) BCLR 125
(CC);
[2020] 3 BLLR 225
(CC);
(2020) 41 ILJ 863 (CC)
[5]
See
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
(2010)
31 ILJ 112 (LC) at para 18; See also
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
(2016) 37 ILJ 2840 (LC) at para 26;
Minister
of Law and Order v Committee of the Church Summit
,
1994 (3) SA 89
(BGD) at 99F-G;
Maqubela
v SA Graduates Development Association and Others
(2014)
35 ILJ 2479 (LC) at para 32, where it was held;
‘
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been
set out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances
where urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of
the applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons
why urgent relief is
necessary. …’
[6]
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another
[2016]
ZALCJHB;
[2016] BLLR 1151
(LC);
(2016)
37 ILJ 2840 (LC) at para 26
[7]
1984(3)
623 (A) at 634-5, where it was held that;
“…
where
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict
or some
other form of relief, may be granted if those facts averred in the
applicant's affidavits which have been admitted by
the respondent,
together with the facts alleged by the respondent, justify such an
order. The power of the Court to give such
final relief on the
papers before it is, however, not confined to such a situation. In
certain instances the denial by respondent
of a fact alleged by the
applicant may not be such as to raise a real, genuine or bona fide
dispute of fact…. If in such
a case the respondent has not
availed himself of his right to apply for the deponents concerned to
be called for cross-examination
under Rule 6 (5) (g) of the Uniform
Rules of Court … and the Court is satisfied as to the
inherent credibility of the
applicant's factual averment, it may
proceed on the basis of the correctness thereof and include this
fact among those upon which
it determines whether the applicant is
entitled to the final relief which he seeks ….. Moreover,
there may be exceptions
to this general rule, as, for example, where
the allegations or denials of the respondent are so far-fetched or
clearly untenable
that the Court is justified in rejecting them
merely on the papers ….”
[8]
See
Rail
Commuters Action Group v Transnet Limited t/a Metrorail
[2004] ZACC 20
;
2005
2 SA 359
(CC) para 35;
Wightman
t/a JW Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 3 SA 371
(SCA) para 13:
Soffiantini
v Mould
1956 4 SA 150
(E) at 154G
Truth
Verification Testing Centre CC v PSE Truth Detection CC
1998 2 SA 689
(W) at 699F-G.