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[2024] ZAECMHC 84
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Mbambi v Tyeks Security Services (CA26/2024) [2024] ZAECMHC 84 (5 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION: MTHATHA)
Case No: CA26/2024
In the matter between:
MZOLIWA
MBAMBI
Appellant
and
TYEKS
SECURITY
SERVICES
Respondent
JUDGMENT
BROOKS J
[1]
On the 18 March 2024 Notyesi AJ granted the appellant leave to appeal
to the full
court against the judgment he had delivered on 4 July
2023 (the judgment). The appellant prosecuted the appeal and it
became
opposed by the respondent. It was argued before this
court on 21 October 2024.
[2]
The crisp issue in the appeal is that of jurisdiction. On 12
November 2019 the
appellant instituted an action against his
erstwhile employer, the respondent, for the recovery of damages.
The action was
defended and the respondent filed a special plea to
the effect that the provisions of the Labour Relations Act
[1]
(LRA) conferred exclusive jurisdiction over the appellant’s
cause of action to the Labour Court. In his replication
the
appellant pleaded that the provisions of the LRA did not oust the
inherent jurisdiction of the High Court and that the latter
has
concurrent jurisdiction with the Labour Court to adjudicate upon the
action. In the judgment the court
a
quo
held
that:
“
This
is a matter in which the Labour Court and the Bargaining Council
enjoy exclusive jurisdiction.”
The order made was as
follows:
“
(1)
Plaintiff’s action is dismissed;
(2)
Each party shall bear its own costs.”
[3]
It is apposite to summarise the cause of action set out by the
appellant in his particulars
of claim. He was previously
employed as a security guard by the respondent. A written
contract of employment had been
concluded that provided for the
employment of the appellant to extend over a fixed term. The
material terms of the contract
of employment are set out in the
appellant’s particulars of claim. During the fixed term
of the contract, four events
occurred that were regarded by the
appellant as a repudiation by the respondent. The appellant
pleaded that by way of a written
letter addressed by his attorneys to
the respondent he communicated his election to accept the repudiation
and to cancel the contract.
Consequential damages are claimed
by the appellant representing the remuneration to which he would have
been entitled had the employment
contract run for the entire fixed
term.
[4]
In its plea, the respondent denied the repudiation and pleaded that
the appellant
had absconded from his job as a security guard.
[5]
Section
157(1) of the LRA provides for the exclusive jurisdiction of the
Labour Court in all matters that – in terms of the
LRA or other
law – are to be determined by the Labour Court. In doing
so, it fulfils one of the stated purposes of
the LRA, which is to
establish the Labour Court and the Labour Appeal Court as superior
courts, with “exclusive jurisdiction
to decide matters arising
from the Act”.
[2]
Section
157(1) reads:
“
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.”
[6]
Sections
68(1),
[3]
77(2)(a),
[4]
145
[5]
and 191
[6]
of the LRA provide
examples of matters that, by virtue of section 157(1), fall within
the exclusive jurisdiction of the Labour Court.
The
Constitutional Court has found,
[7]
moreover, that the High
Court’s jurisdiction in respect of employment-related disputes
is ousted only where the dispute is
one for which the LRA creates
specific remedies including, but not limited to, for example, unfair
dismissal disputes.
[7]
The
Basic Conditions of Employment Act (BCEA)
[8]
echo
the provisions of section 157(1) of the LRA. It provides in section
77(1):
“
Subject
to the Constitution and the jurisdiction of the Labour Appeal Court,
and except where this Act provides otherwise, the Labour
Court has
exclusive jurisdiction in respect of all matters in terms of this
Act.”
[8]
By virtue of section 157(1), the Labour
Court enjoys exclusive jurisdiction over any matter “in terms
of” the BCEA.
Matters governed by or concerning the
enforcement of a provision of the BCEA accordingly fall within the
ambit of the
Labour Court’s exclusive jurisdiction.
[9]
The
High Court has jurisdiction to adjudicate any matter, except those
matters that: (i) fall within the exclusive jurisdiction
of the
Constitutional Court in terms of section 167(4) of the Constitution;
(ii) the Constitutional Court has agreed to hear directly
in terms of
section 167(6); or (iii) have been assigned by legislation to another
court with a status similar to that of the High
Court.
[9]
[10]
There
are various courts with a status like that of the High Court. The
Land Claims Court is one such court. The Labour
Court, which
the respondent contends is the proper forum to hear the appellant’s
claim, is designated as a court with a status
like that of a High
Court.
[10]
However,
both the LRA and the BCEA expressly recognise that there are certain
matters in respect of which the Labour Court and the
High Court enjoy
concurrent jurisdiction. Section 157(2) of the LRA provides, in
relevant part:
“
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;
(b) . . .
(c) ....”
[11]
Section 77(3) of the BCEA provides,
similarly, that 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”. That disputes arising
from contracts of
employment do not, without more, fall within the exclusive
jurisdiction of the Labour Court is further made clear
by section
77(4) of the BCEA, which emphasises that the exclusive jurisdiction
of the Labour Court referred to in section 77(1)
as follows:
“
does
not prevent any person relying upon a provision of [the BCEA] to
establish that a basic condition of employment constitutes
a term of
a contract of employment in any proceedings in a civil court or an
arbitration held in terms of an agreement.”
[12]
Section 157(1) of the LRA does not refer to
specific sections of that Act as sources of the Labour Court’s
exclusive jurisdiction.
It only provides that they are to be
found elsewhere in the Act. In some instances, their location
is clear: for example,
in the sections mentioned in paragraph 8
above. In other instances, it is left to the courts to determine
whether a matter is one
that arises in terms of the LRA and is, in
terms of that Act, or another law, to be determined solely by the
Labour Court.
[13]
The
reason for this delineation is that the Labour Court and the Labour
Appeal Court were “designed as specialist courts that
would be
steeped in workplace issues and be best able to deal with complaints
relating to labour practices and collective bargaining”.
[11]
While
accepting that section 157(1) does not confer exclusive jurisdiction
on the Labour Court in every employment-related matter,
the
Constitutional Court, in
Chirwa
v Transnet Ltd and Others
[12]
,
made it clear that the Labour Court and other specialist tribunals
created under the LRA are uniquely qualified to handle labour-related
disputes:
“
The
purpose of labour law as embodied in the LRA is to provide a
comprehensive system of dispute resolutions mechanisms, forums
and
remedies that are tailored to deal with all aspects of employment.
It was envisaged as a one-stop shop for all labour-
related
disputes. The LRA provides for matters such as discrimination
in the workplace as well as procedural fairness; with
the view that
even if a labour dispute implicates other rights, a litigant will be
able to approach the LRA structures to resolve
the disputes.”
[13]
[14]
The concurrent jurisdiction afforded to the
Labour Court and the High Court in terms of section 77(3) of the BCEA
and section 157(2)
of the LRA adds to their jurisdiction. Thus,
it affords litigants an additional right to approach either court
where a dispute
falls within the ambit of those sections. To
determine whether the Court
a quo
lacked
jurisdiction to adjudicate the appellant’s claim, it is
necessary to determine whether the claim is of such a nature
that it
is required, in terms of the LRA or the BCEA, to be determined
exclusively by the Labour Court.
[15]
The
appellant contends that the cause of action underlying the action
flows from the contract. In summary, the contractual
basis is
that the contract was summarily terminated. In particular, he
pleaded that he was prevented from executing his duties,
replaced
with another security officer and offered to be placed elsewhere.
[14]
[16]
The same set of facts may give rise to
several different causes of action. In some instances, the
forum in which a particular
cause of action may be pursued is
prescribed in terms of legislation. In the labour context,
where more than one potential
cause of action arises because of a
dismissal dispute, a litigant must choose the cause of action he
wishes to pursue and prepare
his pleadings accordingly. This,
the appellant did.
[17]
Had
the appellant sought to pursue a claim of unfair dismissal, he would
have been required, in terms of section 157(1) of the LRA,
to
approach the Labour Court. This is because unfair dismissal
claims fall within the exclusive jurisdiction of the Labour
Court.
However, that the appellant could have done so, does not mean
he was bound to do so. Thus, the viability of
an unfair
dismissal claim did not obligate the appellant to frame his claim as
one of unfair dismissal and to approach the Labour
Court. A
claim for the enforcement of a contractual right remains available to
an employee even though they could have found
on the same set of
facts, a claim for relief for infringement under the LRA. The
following
dictum
of the
Supreme Court of Appeal in
Makhanya
v University of Zululand
[15]
is
apposite:
‘
The
LRA creates certain rights for employees that include the right not
to be unfairly dismissed and [not to be] subjected to unfair
labour
practices. Yet employees also have other rights, in common with
other people generally, arising from the general law.
One is the
right that everyone has (a right emanating from the common law) to
insist upon performance of a contract.
When a
claimant says that the claim arises from the infringement of the
common-law right to enforce a contract, then that is the
claim, as a
fact, and the court must deal with it accordingly. When a claimant
says that the claim is to enforce a right that is
created by the LRA,
then that is the claim that the court has before it, as a fact. When
he or she says that the claim is to enforce
a right derived from the
Constitution, then, as a fact, that is the claim. That the claim
might be a bad claim is beside the point.’
[16]
[18]
To determine whether the Court a quo had jurisdiction, it did not
have to investigate whether
the appellant’s claim based, as it
was, on contract had merit. This is what the Court a quo
erroneously did.
Instead, reference had to be made to the
appellant’s averments in the pleadings to establish the nature
of the right that
he sought to assert in support of the claim.
In Gcaba, the Constitutional Court laid down a principle that an
assessment
of jurisdiction must be based on an applicant’s
pleadings, as opposed to the substantive merits of the case. It
held:
‘
In
the event of the Court’s jurisdiction being challenged the
applicant’s pleadings are the determining factor. They
contain the legal basis of the claim under which the applicant seeks
to invoke the court’s competence. While the pleadings
–
including in motion proceedings, not only the formal terminology of
the notice of motion, but also the contents of the
supporting
affidavits – must be interpreted to establish what the legal
basis of the applicant’s claim is, it is not
for the court to
say that the facts asserted by the applicant would also sustain
another claim, cognisable only in another court.
If, however,
the pleadings, properly interpreted, establish that the applicant is
asserting a claim under the LRA, one that
is to be determined
exclusively by the Labour Court, the High Court would lack
jurisdiction.’
[19]
This is what the Court a quo did not do, which this Court must do.
It is important not
to conflate the question of whether a court
has jurisdiction to hear a pleaded cause of action, with the
prospects of success of
that cause of action. That when
assessing whether its jurisdiction is engaged, a court might be of
the view that a litigant
should have pursued a different cause of
action, or that he would have had a better chance of success had he
done so plays no role
in the enquiry. This, because such views
are irrelevant to the court’s competence to hear a matter.
[20]
The
mere fact that a dispute is in the realm of labour and employment
does not exclude the jurisdiction of the High Court. Many
a
court has held that a breach of a contract of employment falls within
the ordinary jurisdiction of the High Court, notwithstanding
the fact
that the contract is one of employment.
[17]
As
the Constitutional Court held in
Gcaba
:
‘
[T]he LRA does not
intend to destroy causes of action or remedies and section 157 should
not be interpreted to do so. Where
a remedy lies in the High
Court, section 157(2) cannot be read to mean that it no longer lies
there and should not be read to mean
as much. If only the
Labour Court could deal with disputes arising out of all employment
relations, remedies would be wiped
out, because the Labour Court
(being a creature of statute with only selected remedies and powers)
does not have the power to deal
with the common-law or other
statutory remedies.’
[18]
[21]
Indeed,
Chapter VIII of the LRA is “not exhaustive of the rights and
remedies that accrue to an employee upon termination
of a contract of
employment”.
[19]
The
BCEA could not have been clearer on this question. Matters
“concerning a contract of employment, irrespective of
whether
any basic condition of employment constitutes a term of that
contract”, are expressly noted in section 77(3) thereof
as
falling within the
concurrent
jurisdiction
of the High Court and the Labour Court.
[22]
Thus
the High Court retains its
jurisdiction in respect of claims arising from the enforcement of
contractual rights in the labour environment.
[23]
It follows that the correct finding in the court
a quo
should
have been that the LRA does not extinguish contractual remedies
available in the High Court to employees following a breach
of their
contract of employment or the unlawful termination thereof.
Nothing prevented the appellant from instituting the
action for the
recovery of damages in the High Court. The court
a quo
erred in dismissing the appellant’s claim on the basis that it
fell within the exclusive jurisdiction of the Labour Court
and the
Bargaining Council.
[24]
In the circumstances the appeal must be upheld. No reason
exists for costs not to follow
the result. Given the relative
complexity of the matter, it would be appropriate for those costs to
be in accordance with
scale B as referred to in rule 67A of the
Uniform Rules of Court.
[25]
The following order will issue:
1. The appeal is upheld
with costs, such costs to be payable by the respondent on scale B and
to include the costs of two counsel.
2. The order of the court
a quo
is set aside and replaced with the following:
“
The
defendant’s special plea is dismissed with costs.”
RWN BROOKS
JUDGE OF THE HIGH
COURT.
MAJIKI ADJP
I agree
B MAJIKI
DEPUTY JUDGE PRESIDENT
OF THE HIGH COURT (ACTING)
JOLWANA J
I agree
MS JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
For the
Appellant
Adv AM Bodlani SC with
Adv Z
Mashiya
Instructed
by:
LM MTHAMBO ATTORNEYS
66
Stanford Terrace
MTHATHA
For the
Respondent:
Adv L Nkxoyi
Instructed
by:
MBULELO QOTOYI ATTORNEYS
32
Eagle Street
MTHATHA
Date
heard:
21 October 2024
Date
delivered
05 November 2024
[1]
Act
No. 66 of 1995.
[2]
Preamble
to the LRA.
[3]
Section
68(1) provides: “[i]n the case of any strike or lock-out, or
any conduct in contemplation or in furtherance of a
strike or
lock-out, that does not comply with the provisions of this Chapter,
the Labour Court has exclusive jurisdiction [to
grant certain
interdicts and orders]”.
[4]
Section
77(2)(a) provides that furtherance of protest action that does not
comply with the requirements for permissible protest
set out in
section 77(1), “[t]he Labour Court has exclusive jurisdiction
to grant any order to restrain any person from
taking part in
protest action or in any conduct in contemplation or in furtherance
of protest action”.
[5]
Section
145(1) provides that parties alleging defects in any arbitration
proceedings in the CCMA “may apply to the Labour
Court for an
order setting aside the arbitration award”. Section 145(3)
provides further that the Labour Court “may
stay the
enforcement of the award pending its decision” and section
145(4) provides for the powers of the Labour Court
in the event that
the award is set aside. See also
Gcaba
above
n 1 at para 70.
[6]
Section
186 of the LRA deals with unfair dismissals, which, in terms of
section 191, must be referred to arbitration following
a failed
attempt at conciliation and which will ultimately be for review by
the Labour Court. See also
Gcaba
at
para 29.
[7]
Gcaba
v Minister for Safety and Security
[2009]
ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC);
Chirwa
v Transnet Limited
[2007]
ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC); and
Fredericks
v MEC for Education and Training Eastern Cape
[2001]
ZACC 6; 2002 (2) SA 693; 2002 (2) BCLR 113 (CC).
[8]
Act
No.
75
of 1997.
[9]
Section
169(1) of the Constitution reads:
“
The
High Court of South Africa may decide—
(a)
any constitutional matter except a matter that—
(i) the Constitutional
Court has agreed to hear directly in terms of section 167(6)(a); or
(ii) is assigned by an
Act of Parliament to another court of a status similar to the High
Court of South Africa; and
(b)
any other matter not assigned to another court by an Act of
Parliament.”
[10]
Section
151(2) of the LRA.
[11]
Motor
Industry Staff Association v Macun N.O.
[2015]
ZASCA 190
;
2016 (5) SA 76
(SCA) at para 20 (
Motor
Industry Staff Association
).
[12]
[2007]
ZACC 23
;
2008 (4) SA 367
CC
[2007] ZACC 23
; ;
2008 (3) BCLR 251
(CC.
[13]
Gcaba
above
n 1 at para 71;
Motor
Industry Staff Association
above
n 17 at para 20;
Mbayeka
v The MEC For Welfare, Eastern Cape
2001
JDR 0017 (TkH) at para 19.
[14]
Record:
PoC – Para 7.1.1, p 27.
[15]
2010
(1) SA 62 (SCA).
[16]
Ibid
paras 11 and 71.
[17]
Lewarne
v
Fochem International (Pty) Ltd
[2019]
ZASCA 114
; 2019 JDR 1750 (SCA)
at
para 9;
South
African Maritime Safety Authority v McKenzie
[2010]
ZASCA 2
;
2010
(3) SA 601
(SCA)
at
para 7;
Manana
v King Sabata Dalindyebo Municipality
[2010]
ZASCA 144
; 2010 JDR 1423 (SCA) at para 23
;
Fedlife
Assurance Ltd v Wolfaardt
[2001]
ZASCA 91
;
2002 (1) SA 49
(SCA)
at
paras 4-5 and 24.
[18]
Gcaba
above
n 1 at para 73.
[19]
Fedlife
above
n 23 at para 22.