IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER UDGES:
(3) REVISED: YES
./..!I??} ...... Case No: 055811/23
DATE SIGNATURE
In the application between:
NOMSA MOL TAH MAVUSO
NCEBA EMMANUEL MRWEBO
and
COMMISSION FOR GENDER EQUALITY First Applicant
Second Applicant
Respondent
Delivered: This judgment was handed down electronica lly by circulation to the
parties' legal representatives by e-mail. The date for the handing down of the
judgment shall be deemed to be 17 February 2025.
JUDGMENT
LG KILMARTIN, AJ:
A. INTRODUCTION:
[1] This is an opposed application for the following relief:
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[1.1] an order declaring that the withdrawal by the Commission for
Gender Equality (referred to below as "the CGE" or "the
respondent") and termination of the 17% pension benefit of
Nomsa Moltah Mavuso ("the first applicant") and Nceba
Emmanual Mrwebo ("the second applicant") with effect from 1
April 2020 is unlawful and in breach of the contracts of
employment between the first and second applicants
(collectively "the applicants ") and the CGE;
[1.2] ordering the CGE to reinstate the applicants ' 17% pension
benefit with effect from 1 April 2020 in terms of the employment
contracts between the applicants and the CGE;
[1.3] ordering the CGE to pay the applicants 17% pension benefit with
effect from 1 April 2020 and to continue paying such benefit in
compliance with the employment contracts between the
applicants and the CGE; and
[1.4] directing the CGE to pay the costs of the application on an
attorney and client scale.
B. RELEVANT BACKGROUND FACTS:
[2] The first applicant is a Provincial Manager at the CGE and is based at its
Mpumalanga Provincial Office.
13
[3] The second applicant is also a Provincial Manager at the CGE and is
based in East London in the Eastern Cape Province.
[4] The factual background below is common cause and has mostly been
extracted from the joint chronology filed by the parties and the correspondence
referred to therein.
[5] The first applicant commenced employment with the CGE with effect
from 1 August 2006 in the position of Provincial Co-ordinator at a salary level 9
which was adjusted to salary level 11 in 2008. The position title was changed in
2017 to Provincial Manager. In terms of the written contract of employment and,
in particular , the paragraph titled "Pension/Provident Funds", the following was
stated:
"The Employee is entitled to an employer pension allowance equal to
17% of his/her gross salary fixed in terms of the Public Services scales."
[6] The second applicant was appointed to the position of Provincial Co
ordinator at the CGE on or about 2 September 2002 at salary level 9. In 2008,
the salary level of the position was also adjusted to level 11 and his position title
was also changed to Provincial Manager. The second applicant's employment
contract contained the same clause regarding "Pension/Pro vident Funds".
[7] On 21 August 2019, a letter was addressed by Keketso Maema, the
Chief Executive Officer of the CGE, to the first applicant in which, inter alia, the
following was stated:
14
"RE: CONTRACT OF EMPLOYMENT WITH COMMISSION FOR
GENDER EQUALITY 17% PROVIDENT FUND
CONTRIBUTION
1. The above matter as well as the meeting between the senior
management of Commission for Gender Equality ("the CGE")
and yourself on Friday, 26 July 2019 bears reference .
2. You will note that your appointment as Provincial Coordinator for
the CGE on 1 August 2006 (changed to Provincial Manager in
2017) at a salary scale of level 11 benchmarked against
Department of Public Service and Administration ('DPSA ')
prescripts .
3. At all material times, the CGE aligned to the DPSA prescripts in
respect of salaries of MMS.
4. It is common cause that in 2008, plenary took a decision to
award 17% pension contribution to staff appointed at level 11,
due to errors in certain level 11 contracts. The decision was
applied to all level 11 staff members .
5. The decision at the time was an administrative error in
contravention of the DPSA prescripts .
6. In the plenary meeting of May 2019, Plenary of Commissioners
resolved that such a benefit has been an administrative error
and in contravention of certain provisions of the Public Service
prescripts and should be corrected ; the Chief Executive Officer
and senior management must carry out the amendments .
15
7. Further, the Commissioners resolved that CGE will not recover
the previous portions of the contributions the CGE has already
made towards your provident fund, and will absorb the loss,
unless compelled otherwise by a court order.
8. However, CGE advises, as we hereby do, that the
abovementioned 17% provident fund contribution will be
stopped.
9. In the final analysis, we advise that going forward, you are
required to make the necessary arrangements to ensure that
your future provident fund contributions are fully catered for by
structuring your cost to company benefits accordingly.
10. We thank you for your continued support and contribution to the
growth and values of the CGE.
11. We trust you find the above in order. Please do not hesitate to
contact us should you want to discuss this further." (sic)
(Emphasis added)
(8] In the joint chronology which was uploaded after the hearing at the
request of the Court and, in particular , item 3 thereof, it is confirmed that the
decision was taken by the Plenary Committee with "no prior consultation ".
(9] On 2 September 2019, a letter was addressed by the first applicant to
the CGE requesting , inter alia: (i) the plenary resolution minutes of 2008 when
the decision was taken; (ii) the plenary resolution of 2019 and the minutes; and
(iii) the document used to benchmark the final decision.
16
[1 0] On 23 March 2020, a letter was addressed by the CGE to the first
applicant, denying her access to the documents requested and confirming the
CGE's decision to terminate the first applicant's pension benefits with effect from
1 April 2020. The first applicant was also advised that she had the right to
approach a Court of law of competent jurisdiction to ventilate any concerns.
[11] On 24 March 2020 a letter was addressed by the first applicant to the
CGE requesting the CGE to hold its decision in abeyance to allow her to exhaust
all internal remedies.
[12] On 29 April 2020, a letter was addressed by Keketso Maena of the CGE
to the first applicant which stated the following:
"1. We refer to the above matter, our letter addressed to you on 27
February 2020 and hereby officially advise you that the
Plenary resolution has been implemented from 01 April 2020.
2. You are advised that your Basic salary, bonus, pension has
been proportionally reduced by 17% amounting to R 11 081.26
per month.
3. You have the right to approach a court of law with competent
jurisdiction to ventilate any concerns you may have. Such action
would be at ·your own cost and CGE reserves its rights to oppose
such an action should this eventuate .
4. We trust you find the above in order."
17
[13] On 12 June 2020, it would appear that the applicants (together with
another employee of the CGE referred to as "Napo") referred the matter to the
Commission for Conciliation, Mediation and Arbitration ("CCMA").
[14] On 17 September 2021, Johnny Mathebula ("Mr Mathebula "), in his
capacity as Commissioner of the CCMA, instructed the parties to hold a pre
arbitration meeting and to submit a signed minute.
[15] On 10 November 2021, the Commissioner heard the evidence of the
applicants .
[16] One of the cases before the CCMA was settled and payment was
effected by the CGE.
[17] On 3 January 2022, Thabo Lebea ("Mr Lebea") who represented the
CGE indicated that Joe Thlapi ("Mr Thlapi") who had been instructed by Munyai
Tshilidzi Attorneys (who represented the applicants before the CCMA) was not
an advocate and, after extensive investigations of his credentials , it was
discovered that he was not a practising advocate.
[18] Mr Thlapi did not dispute Mr Lebea's submissions in this regard and
confirmed that he was not a practising advocate and had in fact "gone back to
school'. As a result of this, Mr Lebea had requested that the process, in its
entirety, "be declared a nullity and that the settlement agreement in which
Mr Thlapi was involved also be nullified and Napo pay back the money that the
respondent had paid to her."
18
[19] On 14 February 2022, a ruling was issued by Mr Mathebula . Under the
heading titled "Analysis of submissions ", inter alia, the following was stated:
"4. Mr Thlapi obviously mislead the CCMA and perhaps his instructing
attorneys. He did not even argue that he was on the roll of non
practising advocates. He said that he had gone back to school.
Section 213 of the LRA defines legal practitioner as a person
admitted to practice as an advocate or attorney in the Republic.
5. In terms of Rule 25(b), only a legal practitioner has right of
appearance at the CCMA as well as a Candidate Attorney. To the
extent that Tlhapi masqueraded as an Advocate, this was
prejudicial to the applicants in that the process becomes a
nullity because the evidence was adduced under false
pretences. I do not have the power to nullify the settlement
agreement because it was signed by the applicant herself
6. Below I have established that the referral was defective from
the onset. A settlement agreement was reached under a defective
conciliation referral. The respondent should approach the Labour
Court in this regard for an appropriate remedy if it so wished. I
however could not proceed with the matter.
7. Mr Lebea also indicated that the matter must be re-referred. Upon
checking the referral for conciliation , it was pp'd on behalf of the
Deputy Director Research Policy and the arbitration referral pp'd on
behalf of the Provincial Manager. The referrals can only be signed
by the people who are entitled to represent at the CCMA i.e. Legal
Practitioners , unions, employer organizations , candidate attorney
and an official of an advice office resorting under some oversight
body. Also, a referral cannot be pp'd on behalf of the applicants by
anyone." (sic) (Emphasis added)
19
[20] The following ruling was also issued by Mr Mathebula on 14 February
2022 ("the first CCMA ruling"):
"Ruling
1. The arbitration process under case number GAJB15458-21 is
accordingly declared a nullity;
2. The referral forms for conciliation and arbitration have not been
signed by the applicants or their chosen legal representatives , thus
making them defective.
3. Accordingly , the CCMA lacks the jurisdiction to conciliate and/or
arbitrate the dispute and the applicants , if they so wish, may re
refer the dispute and submit a signed referral form accompanied by
a condonation application since the 30 days has elapsed."
(Emphasis added)
[21] On 15 February 2022, the applicants re-referred the matter to the CCMA
with an accompanying condonation application . The CGE raised several
preliminary points regarding the re-referral.
[22] A further ruling was issued by Musolwa Rapalalane, as Commissioner of
the CCMA on 3 August 2022 ("the further CCMA ruling") which stated, inter alia,
the following:
"4. I've gone through the CCMA file and noted that the same dispute
was referred and dealt with under case number GAJB 15458-20 .
The ruling was issued on 14 February 2022 by Commissioner
Johnny Mathebula which reads as follows:
110
'9. 1 The referral forms for conciliation and arbitration
have not been signed by the applicants or their
chosen legal representative, thus making them
defective .
10. Accordingly, the CCMA lacks jurisdiction to
conciliate and/or arbitrate the dispute and the
applicants, if they so wish may re-refer the dispute
and submit a signed referral form accompanied by a
condonation application since 30 days has lapsed.'
5. I have further noted that the Applicants filed the same defective
referral under case number GAJB 15458-20 without their signature
or chosen legal representative as per the ruling issued on
14 February 2022.
6. In the premises, I make the following order:
7. The Applicants are directed to comply with the ruling issued by
Commissioner Johnny Mathbula on 14 February 2022.
8. CCMA services are for free, should the Applicants have any
difficulty in interpreting the said ruling they may, if they wish so,
approach the CCMA.
9. The CCMA must suspend the matter pending the Applicants'
compliance with the said ruling."
[I interpolate to point out that as the first CCMA ruling declared the entire
matter a nullity and there was no compliance with the ruling and no
proper re-referral, there was no dispute pending before the CCMA when
these proceedings were brought.]
111
[23) On 8 March 2022, almost 2 years after the first correspondence had
been sent to the first application, Jamela Robertson , in the capacity as the Chief
Executive Officer of the CGE, addressed a letter to the first applicant in relation
to the dispute, inviting the applicants to an ex post facto consultation. The letter
states, inter alia, the following:
"COMMISSION FOR GENDER EQUALITY II MOLTAH MAVUSO -
CONSULTATION ON THE 17% PROVIDENT FUND ALLOWANCE AS
ERRONEOUSLY CONFERRED BY YOUR EMPLOYMENT
CONTRACT:
1. Introduction
1. 1. We refer to the above matter and the ongoing dispute
regarding the 17% provident/pension fund contribution ("the
17% contribution '? of level 11 and above positions with the
Commission for Gender Equality ("the CGE or the
employer'?.
1.2. During or around July 2021, the CGE Plenary of
Commissioners passed a resolution authorising the Chief
Executive Officer to consult with employees who are at
level 11 and above who received the 17% contribution from
the Employer.
2. The reasons for the proposed continual consultation are the
following
2.1 The Employer has taken a decision to continue consulting
the affected employees with the aim of ensuring that the
matter is resolved amicably through a settlement process.
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3. Process to be followed
The Employer wishes to ensure that it had invoked a procedurally
fair process to you. The Employer will continue consultations with
the affected parties and shall consider all proposed alternatives
presented during the consultation process.
4. Issues to be discussed during the consultation
The Employer will attempt to reach consensus with the affected
parties on the appropriate measures which may be proposed to
resolve the erroneous contributions.
5. Commencement of the consultation process
We propose such consultation process to commence as urgently
as possible on mutually acceptable dates. The Employer is
available to consult as follows:
DATE:
TIME:
VENUE: Tuesday, 22 March 2022
10h00
Ground floor Boardroom
02 Kotze Street
East Wing, Women's Jail
Constitution Hill, Braamfontein
6. Facilitation process
6.1. The Employer's legal representatives represent the
employer during the consultations.
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6.2. Kindly note that you may attend the meeting with your legal
representatives should you so wish, at your own cost.
6.3. Further, we kindly request that you confirm your availability
by no later than 14 March 2022 .
. . . "(Underlining added)
[24] On 4 November 2022, a letter of a demand was addressed by the first
applicant's attorneys, demanding that the CGE pay the 17% commission
retrospectively. The letter states, inter alia, the following:
"We hereby confirm that we are acting on behalf of Nomsa Moltah
Mavuso our Client herein.
We do hereby confirm that there was an allegation that in 2019, the
plenary of Commission took a unilateral decision to deduct 17% of
Provident Fund Contribution. The said decision was communicated to
our Client on the 23rd March 2020.
We pause to say that, that decision was unilateral unlawful and taken
without proper consultation as a consequence thereof, it was
implemented despite our Client objecting to it.
We further confirm that the decision was rescinded on the 19th July 2021
and as such the unlawful decision is no longer effective and enforceable ,
despite that you continued to deduct the aforesaid 17% in light of the fact
that there was no decision to do so. We further confirm that the
aforesaid 17% is a benefit on the contract between yourselves and our
Client, we further note that you are in breach of employment contract.
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We further note that despite several legal opinions made to the
Commission that you must pay our Client, and you continued to deduct
17% from our Client despite legal opinions advising you to pay.
We further note that on the annual report of 2020/2021 on page 109
under heading referred to as 29 and referring to a topic "Events after the
reporting date".
We note that the Commission in its report confirmed the rescission of the
decision on the 19th July 2021 and such, advised parliament "thereby
rendering the claim by employees retrospectively payable in favour of
the employees resulting in an increase of R730 983.00 in employees
cost for the reporting period".
We note that parliament was mislead to believe that the dispute of our
Client was finalised and they were paid, despite the Commission not
paying the said amount.
We do hereby demand that the Commission pay the aforesaid amount
as per the allegation of the report by the Commission to parliament
within 15 days, failing which, we shall bring an application to the Labour
Court demanding compliance with the report. We further place it on
record that, we shall also advise parliament that you mislead them about
the dispute having been resolved and paid our client." (sic)
[The response to the reference to the letter is merely "to the extent that
the content of paragraphs 15 to 19 above are a true reflection of the
content of the letters cited therein, the allegations herein contained are
admitted -at no stage are the allegations about what was conveyed to
parliament dealt with.]
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[25] On 26 October 2022, a letter was addressed by the CGE's attorneys ,
Lebea Inc., in which the following was stated in paragraphs 5 and 6 thereof:
c.
[26] "5. However, on 11 October 2022, the CCMA indicated that the matter
is closed until Ms Mavuso complies with the rulings issued by the
CCMA.
6. This means that there is currently no live dispute between the
CCMA regarding the matter. The likelihood of the matter being
resuscitated are up to null as a long period of time has passed
without any steps taken by Ms Mavuso. In the premises, the
matter at CCMA is currently closed." (sic) (emphasis added)
POINTS IN LIM/NE:
The CGE raised the following points in limine:
[26.1] prescription ;
[26.2] non-compliance with section 3 of the Institution of Legal
Proceedings against certain Organs of State Act, 40 of 2002;
and
[26.3] /is alibi pendens.
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Prescription:
[27] In relation to the first point in limine, namely prescription, the applicants
correctly pointed out that, in terms of section 12( 1) of the Prescription Act, 68 of
1969 ("the Prescription Act"), prescription only starts to run when a debt
becomes due and because the 17% pension benefit would become due on a
monthly basis when the applicants' salaries were paid, the entire debt could not
have prescribed on or about 30 May 2023 in terms of section 11 (d) of the
Prescription Act, as alleged by the CGE.
[28] Section 11 of the Prescription Act deals with "Periods of prescription of
debts" and section 11 (d) provides that, save when an act of parliament provides
otherwise , the prescription period in respect of a debt other than those referred
to in sections (a), (b) or (c) (which are not applicable here) will be three (3) years.
[29] It is well-established that a continuing wrong can result in a series of
debts arising from moment to moment.1
[30] Consequently, the 17% pension fund would become due and payable on
a month-month basis and, at best for the CGE, the pension benefits for the
months of April and May 2020 would be the only benefits which could have
prescribed . These proceedings were instituted on 9 June 2023 and therefore no
amounts payable from the end of June 2020 would have prescribed .
Barnard and Others v Minister of Agriculture and Land Affairs (2007] SCA 95 (RSA).
117
Non-compliance with section 3 of Act 40 of 2002:
[31] In Vhembe District Municipality v Stuarts and Lloyds,2 it was confirmed
that where there is a claim for specific performance arising from a contract,
section 3 of Act 40 of 2002 does not apply.
[32] There is accordingly no merit in this special plea.
Lis pendens :
[33] The CGE contended that the litigation between the CGE and the
applicants is the subject of pending litigation before the CCMA.
[34] The party wishing to raise /is pendens bears the onus of alleging and
proving the following:3
2
3
4
5 [34.1] pending litigation;4
[34.2] between the same parties or their privies;5
[34.3] based on the same cause of action [the requirement of the same
cause of action is satisfied if the other proceedings involved the
determination of a question that is necessary for the
[2014] ZASCA 93, para [16].
George v Minister of Environmental Affairs and Tourism 2005 (6) SA 297 (EqC) at 310 D,
para (28].
Van As v Appolus 1993 (1) SA 606 (C) at 609 E.
Ceasarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6)
SA 499 (SCA) at 511 E.
118
determination of the present case and is substantially
determinative of its outcome];6 and
[34.4] in respect of the same subject matter. [This has been found not
to mean that the form of the relief claimed must be identical] .7
[35] In Nestle (South Africa) (Pty) Ltd v Mars Inc. ("Nestle")8 the Supreme
Court of Appeal ("the SCA") described the features of the plea /is alibi pendens
as follows:
"The defence of /is alibi pendens shares features in common with the
defence of res judicata because they have a common underlying
principle which is that there should be finality in litigation. Once a suit
has been commenced before a tribunal that is competent to adjudicate
upon it the suit must generally be brought to its conclusion before that
tribunal and should not be replicated (/is alibi pendens). By the same
token the suit will not be permitted to be revived once it has been
brought to its proper conclusion (res judicata). The same suit, between
the same parties, should be brought only once and finally."
(36] The applicants contend that the CGE's argument based on /is pendens
is disingenuous because the claim was disposed of by the CCMA in terms of the
rulings which were made. In my view the first CCMA ruling confirmed that the
proceedings were a nullity and the failure to comply with that ruling and properly
re-refer the matter (which never happened) means that there were no
proceedings pending before the CCMA when this matter was instituted.
6 Nestle (SA) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) at 549 A, para [16).
7 Williams v Shub 1976 (4) SA 567 (C) at 571 H.
8 2001 (4) SA 542 (SCA) at 548 I -549 B, para (16].
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[37] Even the CGE's attorneys , in their letter of 26 October 2022, stated
" ... there is currently no live dispute between the CCMA regarding the matter.
The likelihood of the matter being resuscitated are up to null as a long period of
time has passed without any steps taken by Ms Mavuso. In the premises , the
matter at CCMA is currently closed." (sic)
[38] At the hearing of the matter, counsel for the CGE submitted that the
issue of /is pendens was intertwined with the jurisdiction of this court to hear the
matter. He indicated that as we are dealing with an "unfair labour practice" the
matter should have been referred to the CCMA and the Court should refuse to
hear the matter. In this regard, I was referred to section 186(2)(a) of the Labour
Relations Act 66 of 1995 ("the Labour Relations Act") which provides as follows:
"186 Meaning of dismissal and unfair labour practice
(2) 'Unfair labour practice' means any unfair act or omission
that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion ,
demotion , probation (excluding disputes about
dismissals for a reason relating to probation) or training
of an employee or relating to the provision of benefits to
an employee ; ... "
[39] Section 157 of the Labour Relations Act deals with the jurisdiction of the
Labour Court and provides as follows:
"157 Jurisdiction of Labour Court
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(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;
(b) any dispute over the constitutionality of any executive
or administrative act or conduct, or any threatened
executive or administrative act or conduct, by the
State in its capacity as an employer; and
(c) the application of any law for the administration of
which the Minister is responsible."
[40] It was further argued by counsel for the CGE that the conduct of the
applicants constituted forum shopping and that this court lacks jurisdiction as a
result of the Constitutional Court decision in Steenkamp and Others v Edcon
LimitecfJ where the following was stated:
9 "[130] The scheme of the LRA is that, if it creates a right, it also creates
processes or procedures for the enforcement of that right, a dispute
resolution procedure for disputes about the infringement of that right,
2016 (3) SA 251 (CC) at para [130).
121
specifies the fora in which that right must be enforced and specifies the
remedies available for a breach of that right. A well-known example is
every employee 's right not to be unfairly dismissed which is provided for
in section 185. In section 186 there is a definition of what dismissal
means. In section 187 there is a special category of dismissals , namely,
automatically unfair dismissals . In section 188 other categories of
dismissals are created, namely, dismissals that lack a fair reason and
procedurally unfair dismissals."
[41] However, more recently in Baloyi v Public Protector and Others10
("Baloy,") the Constitutional Court stated, inter alia, the following:
10 "[32] In order to determine whether the High Court lacked jurisdiction
to adjudicate Ms Baloyi'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
Employment Act, to be determined exclusively by the Labour Court.
[33] In Gcaba this court made clear 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
2022 (3) SA 321 (CC).
122
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 .'
[34] Ms Baloyi contends that the cause of action underlying the
review relief flows from both public law and contract. The contractual
basis for the review relief is that her contract was terminated out of time,
well after her probation period had ended and in conflict with its terms
relating to termination. In particular , she points out that her contract
made it clear that, if the employer neither confirmed nor terminated her
contract at the end of the stipulated probation period, the appointment
would be deemed to be confirmed. She also notes that certain policies of
the Office of the Public Protector, which were incorporated into her
contract by reference, were not complied with.
[37] The High Court held that the matter is essentially a labour
dispute arising from an employment relationsh ip that falls within the
Labour Court's exclusive jurisdiction. For the reasons that follow, the
High Court erred in reaching this conclusion .
[38] It is trite that 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 as a result of a dismissal dispute, a litigant
must choose the cause of action she wishes to pursue and prepare
her pleadings accordingly . Had Ms Baloyi sought to pursue a claim of
unfair dismissal , she would have been required, in terms of s 157(1) of
123
the LRA, to approach the Labour Court. This is because unfair-dismissal
claims fall within the exclusive jurisdiction of the Labour Court.
[39] Crucially, however, where a litigant is required to bring a
certain cause of action before a specifically competent forum, it
does not follow that they are bound to pursue a claim under that
cause of action simply because it is possible to do so. Put
differently, the fact that a cause of action is limited to certain fora
must not be interpreted as obliging an applicant only to pursue that
particular cause of action. The respondents cite the dictum of the
Labour Appeal Court that -.
'(i)f a cause of action meets the definitional requirements of an
unfair labour practice or an unfair dismissal, the dictates of
constitutional and judicial policy mandate that the dispute be
processed by the system established under the LRA for their
resolution'. In this case, they submit that, because Ms Baloyi has a
claim meeting the definitional requirements of an unfair labour
practice or unfair-dismissal claim, she is obliged to pursue that
claim in the Labour Court. In this regard, the respondents also
place reliance on this court's statement in Steenkamp _that '(a)
cause of action based on a breach of an LRA obligation obliges the
litigant to utilise the dispute resolution mechanism of the LRA to
obtain a remedy provided for in the LRA '.
[40] The mere potential for an unfair-dismissal claim does not
obligate a litigant to frame her claim as one of unfair dismissal and
to approach the Labour Court, notwithstanding the fact that other
potential causes of action exist. In other words, the termination of a
contract of employment has the potential to found a claim for relief
for infringement of the LRA, and a claim for enforcement of a right
that does not emanate from the LRA (for example, a contractual
right). The following dictum of the Supreme Court of Appeal
124
in Makhanya, which squarely addressed a contractual cause of
action in the employment context, is apposite in this regard:
'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.'
[41) The approach endorsed in Makhanya aligns with a series of
judgments from the Supreme Court of Appeal that have confirmed
that a contractual claim arising from 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.
[43) In this matter, the High Court based its finding on a holistic
assessment of whether the dispute was located 'within the compass of
labour law' instead of determining whether the specific causes of
action relied on by Ms Baloyi fall within the jurisdiction of the High Court
or the Labour Court (or both). This approach is based on a
misinterpretation of this court's judgment in Chirwa, where it was
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expressly found that the jurisdiction of the High Court is not ousted
merely because a dispute falls within the sphere of employment
relations.
[44] The exclusive jurisdiction of the Labour Court is engaged where
legislation mandates it, or where a litigant asserts a right under the LRA
or relies on a cause of action based on a breach of an obligation
contained in that Act. As held in Gcaba, disputes that fall within the
exclusive jurisdiction of the Labour Court are 'labour and employment
related disputes for which the LRA creates specific remedies'. The
corollary of a litigant's reliance on an LRA right is, of course, reliance on
an LRA remedy.
[45] In sum, the mere fact that a dispute is located in the realm
of labour and employment does not exclude the jurisdiction of the
High Court. As this court held in Gcaba:
'(T)he LRA does not intend to destroy causes of action or remedies
and s 157 should not be interpreted to do so. Where a remedy lies
in the High Court, s 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.'
[46] Indeed, contractual rights exist independently of the LRA. As the
Supreme Court of Appeal has on numerous occasions emphasised , s 23
of the Constitution does not deprive employees of a common-law right to
enforce the terms of a fixed-term contract of employment and the LRA,
in turn, does not confine employees to the remedies for 'unfair dismissal'
provided for in the Act. Chapter VIII of the LRA is 'not exhaustive of the
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rights and remedies that accrue to an employee upon termination of a
contract of employment' .
[47] Matters 'concerning a contract of employment , irrespective of
whether any basic condition of employment constitutes a term of that
contract', are expressly noted ins 77(3) of the Employment Act as falling
within the concurrent jurisdiction of the High Court and the Labour Court.
The question whether contractual claims arising from employment
contracts fall within the concurrent jurisdiction of the High Court and the
Labour Court has not explicitly arisen before this court. However, as
noted above, the Supreme Court of Appeal has explained on numerous
occasions, with reference to the reasoning of this court regarding
jurisdiction over claims based on administrative action in the labour
sphere, that the High Court retains its jurisdiction in respect of claims
arising from the enforcement of contractual rights in the employment
context. This finding is borne out by the plain language of s 77(3) of the
Employment Act, quoted above, and ss 157(1) and 157(2) of the LRA."
[42] Having regard to what is stated in Baloyi, it is clear that the cause of
action is based on a breach of contract. This Court therefore does have
jurisdiction to hear the matter.
[43] In the light of the above, I am of the view that there is no merit in the /is
pendens argument or the attack on jurisdiction .
D. MERITS
[44) In essence, the main issue is whether or not the CGE acted lawfully and
in breach of the agreements concluded between it and the applicants when it
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terminated or withdraw the 17% pension benefit which was payable in terms
thereof.
[45] It is common cause between the parties (or cannot genuinely be
disputed) that: (i) the contracts of employment provided for payment of an
employer pension allowance of 17%; (ii) there was no consultation with the
applicant prior to the pension allowance being stopped; and (iii) there was an
attempt two years later to ex post facto hold consultations.
[46] Where rights of individuals are affected by policy, law or administrative
action, it is mandatory that consultation with the affected persons takes place.11
[47] Furthermore , an employer who purports to make changes to terms and
conditions of employment of an employee must engage in a consultation process
with the affected parties. The key elements of a legitimate consultation process
were enumerated by the Full Bench of the Western Cape High Court in
Tlouamma and Others v Mbethe, Speaker of the National Assembly of the
Parliament of the Republic of South Africa and Another12 (" Tlouamma ") as
follows:
11
12 "[92. 1 J The essence of consultation is the communication of a
genuine invitation, extended with a receptive mind, to give
advice. It would normally be understood as a meeting or
conference at which discussions take place, ideas are
exchanged and advice or guidance is sought or tendered.
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC},
para (63] and Maledu v ltereleng Bakgatla Mineral Resources 2019 (2) SA 1 (CC), paras
[78] to (80].
2016 (1) SA 534 (WCC).
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[92.2] Consultation entails a process in which more than one person
confers in the sense of applying their minds together to consider
the pros and cons of a matter. It may be formal or informal, oral
or in writing. The essence of consultation is a communication of
ideas on a reciprocal basis. The procedure is in the discretion of
the person who has to consult. The procedure must, however,
allow reasonable opportunity to both sides (the consulting and
the consulted parties) to communicate effectively and achieve
the purpose for which prior consultation is prescribed .
[92.3] The form of consultation is usually not important as long as the
lines of communication are open and the parties are afforded a
reasonable opportunity to put their cases or points of view to
one another."
[48] According to the CGE, in deciding to cease payment of the 17%
pension/provident fund benefit, it did not purport to affect a change or alteration
to the terms and conditions of its employment contract with the applicants . It
further submitted that the CGE was essentially undertaking to correct an
administrative error that had been made when the 17% pension/provident fund
benefit was initially and erroneously awarded to all level 11 employees.
[49] These submissions are, with respect, untenable . There was clearly a
provision in the contract to pay 17% pension or provident fund benefits and this
was unilaterally revoked, without any prior consultation, based on a plenary
decision.
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[50] Insofar as the consultation process was concerned , the respondent 's
counsel submitted that the CGE did duly embark upon a consultation process as
required by the law for the following reasons:
[50.1] the CGE communicated to the applicants on or about 21 August
2019 that the plenary decision to award the 17%
pension/provident fund benefit to all level 11 employees was an
administrative error and that such a decision contravened DPSA
prescripts ;
[50.2] the CGE also communicated to the applicants that a further
plenary decision had been taken to correct the administrative
error, that is to cease payment of the 17% pension/provident
fund benefit to all level 11 employees;
[50.3] the CGE also engaged with the applicants on other occasions
concerning its predicament regarding the 17% pension/provident
fund benefit;
[50.4] following its communication 21 August 2019, the respondent
engaged in a continuous consultation process with the
applicants and other affected employees . Reference was made
to the evidence of the consultation process in annexure "AA5" of
the respondent's answering affidavit which was a letter stating
inter alia that the CGE expressed its decision to "continue
consulting with the affected employees with the aim of ensuring
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that the matter is resolved amicably ". To suggest that there was
a continuing consultation process from 21 August 2019 is not
borne out by the evidence.
[51] Upon a proper consideration of the correspondence exchanged and, in
particular, the letter of the CGE dated 8 March 2022, it is clear that no proper
consultation took place and the invitation two (2) years later suggesting
"proposed continuing consultation" is misleading as there was simply no
consultation prior to that. The aforesaid letter also states "[t]he Employer wishes
to ensure that it has invoked procedurally fair process to you" and this, in my
view, effectively amounts to a concession that it had not invoked a procedurally
fair process prior to that.
[52] Counsel for the applicants further pointed out that consultation, in itself,
is not enough and rather that consultation before the implementation of any
change of contractual terms must be negotiated and agreed between an
employer and employee . It was pointed out by the applicants ' counsel that this
proposition accords with what was held in Mazista Tiles (Pty) Ltd v National
Union of Mine Workers13 where the Court held:
13 "An employer who is desirous of effecting changes to terms and
conditions applicable to his employees is obliged to negotiate with
the employees and obtain their consent. A unilateral change by the
employer of the terms and conditions of employment is not
permissible . It may so happen, as it was the position in the case, that
the employees refuse to enter into agreement relating to the alteration of
2004 ILJ 2156 (LAC), para [48).
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their terms and conditions because the new terms are less attractive or
beneficial to them. While it is impermissible for such employer to
dismiss his employees in order to compel to accept his demand relating
to the new terms and conditions , it does not mean that the employer can
never effect the desired changes. If the employees reject the proposed
changes and the employer wants to pursue the implementation , he has
the right to invoke the provisions of s 189 and dismiss the employees
provided the necessary requirements of that section are met." (Emphasis
added)
[53] I agree with the applicants that the documentary evidence placed before
the court shows that there was never any meaningful consultation between the
applicants and the CGE on the issue of withdrawing the 17% pension allowance.
There was also clearly no agreement reached in this regard. The CGE
unilaterally , without any meaningful consultation , withdrew the 17% pension
benefit with effect from 1 April 2020.
[54] The CGE in in breach of its obligation to pay the 17% pension benefit
and has been since 1 April 2020. As stated above, only the April and May 2020
amounts are impacted by the prescription argument.
[55] Having regard to the importance of the matter to the parties, I am
inclined to order the costs on scale B.
ORDER
In the circumstances , I am satisfied that the applicants have shown that the
withdrawal of their 17% pension benefit was unlawful and was in breach of the
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employment agreements concluded between them and the CGE. I accordingly
grant an order in the following terms:
1. The respondent's withdrawa l and/or terminatio n of the applicants' 17%
pension benefit with effect from 1 April 2020, is declared unlawful and in
breach of the contracts of employment between the applicants and the
respondent ;
2. The responden t is ordered to reinstate the applicants' 17% pension
benefit with effect from June 2020 in terms of the employment contracts
between the applicants and the responden t;
3. The responde nt is ordered to pay the applicants ' 17% pension benefit
with effect from June 2020 and to continue paying such benefit in
compliance with the employment contracts between the applicants and
the respondent ;
4. The respondent is ordered to pay the costs of this application, including
the costs of counsel, on Scale B.
Dates of hearing:
Date of judgment:
For the Applicants:
Instructed by: LG KILMARTIN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
29 November 2024
17 February 2025
Adv L Kalashe
Mjali & Zimema Attorneys
For the Defendant:
Instructed by: Adv S Sethene
Lebea Inc. Attorneys 133