THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA75/2023
In the matter between:
JOHAN JANSEN VAN VUUREN Appellant
and
HEAVEN SENT GOLD SA (PTY) LTD First Respondent
GRYPON GOLD (PTY) LTD Second Respondent
and
Case no: JA76/2023
In the matter between:
JOANNÉ JANSEN VAN VUUREN Appellant
and
HEAVEN SENT GOLD SOUTH AFRICA PROPERTY
& INVESTMENT (PTY) LTD First Respondent
HEAVEN SENT GOLD BUSINESS TRUST Second Respondent
2
Heard: 6 March 2025
Delivered: 17March 2025
Coram: Savage AJP, Sutherland and Davis AJJA
JUDGMENT
SAVAGE, AJP
Introduction
[1] In issue in the two appeals before this Court , which are before us with the
leave of the Labour Court and are considered together given the commonality of facts and issues in dispute, is whether the Labour Court held the necessary
jurisd iction to determine the appellants’ claims in terms of section 77(3) of the Basic
Conditions of Employment Act
1, which provides 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.’
[2] At the outset of the hearing, t he appellants sought that the late filing of their
respective appeal records be condoned, given the challenges faced by them in
having the appeal record prepared. The application was not opposed, and the Court
can find no reason to refuse such application having regard to the extent of the
delay, the reasons for it, the nature of the matter, interests of justice and considerations of prejudice. The appeal is therefore reinstated, and the late filing of
the record condoned.
Background
1 Act 75 of 1997.
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[3] Mr Johan Jansen van Vuuren, referred to as the first appellant , and Mrs
Joanné Jansen van Vuuren, referred to as the second appellant , each entered into a
‘Termination of Services and Settlement Agreement’ on 14 January 2021: the first
appellant with Heaven Sent Gold Business Trust and Gryphon Gold (Pty) Ltd
(Gryphon Gold) , the latter being the second respondent in JA 75/2023 (the first
appeal) ; and the second appellant with Heaven Sent Gold Property & Investment
(Pty) Ltd and Heaven Sent Gold Business Trust, being the first and second
respondents in JA 76/2023 (the second appeal) .
[4] The settlement agreement entered into with the first appellant records that :
4.1 his employment with Gryphon Gold terminated with effect from 1
January 2020 (the termination date);
4.2 from 1 January 2020 until 15 January 2021 , any services performed by
him were performed in the capacity of an independent contractor through the
Janse Van Vuuren Trust (the Trust) and not as an employee;
4.3 that Gryphon Gold would pay the Trust an amount equal to nine
months ’ contributions , in the amount of R16 294,00, in respect of the first
appellant’s membership of the medical aid scheme of which he was a member
on the date of termination of his employment;
4.4 the first appellant will receive payment of his normal monthly employee
remuneration for the period until the termination date, together with 25 days
accumulated leave pay due to him as an employee, which will be paid within 14
days of the termination date;
4.5 the first appellant will be paid an independent contractor payment equal
to R3 150 000,00, a first tranche of R1 050 000 within 14 days of the termination date and a second tranche of R2 100 000 on 21 F ebruary 2021.
[5] The settlement agreement entered into with the second appellant records
similarly, save that:
5.1 her employment with Heaven Sent Gold Property and Investment
Company (Pty) Ltd terminated with effect from 1 August 2020, from which
date she was to render services as an independent contractor until 15
January 2021;
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5.2 she will be paid 23 days accrued leave due to her as at termination of
her employment ;
5.3 she will be paid an amount equal to nine months ’ contributions , being
R16 294,00, in respect of her membership of the medical aid scheme of which
she was a member on the date of termination of her employment; and
5.4 she will be paid an independent contractor payment equal to R 1 350
000,00, with the first tranche of R450 000 to be paid within 14 days of the
termination date and the second tranche of R900 000 to be paid on 28 February 2021.
[6] When the appellants were not paid the amounts agreed, they approached the
Labour Court to enforce payment . The first appellant claimed payment of a total
amount of R3 868 374,00 and the second appellant a total amount of R1 946
273,35. The first appellant contended that the total amount due was made up of R3
150 000, being the independent contractor fee due in terms of the agreement, his
monthly remuneration in the amount of R350 000, 25 days accumulated leave pay in the amount of R380 444,78 and R146 646 i n relation to nine months ’ medical aid
contributions. The second appellant contended that the total amount due was made
up of R1 350 000,00, being the independent contractor fee due in terms of the
agreement, her monthly remuneration in the amount of R150 000, 23 days
accumulated leave pay in the amount of R 150 000 and R146 646 in relation to nine
months ’ medical aid payments. Before the Labour Court , both appellants abandoned
the relief sought to have their settlement agreements made an order of Court .
[7] In opposing the relief sought, the respondents took issue with the fact that the
total amount s claimed were precisely the amount s reflected in invoice s submitted by
the appellants , which were attached to their founding papers, in which the payment
sought w as described as a “(s)ervice fee as an independent contractor ”. These
amounts were unrelated to the employment relationship, with the result that section
77(3) did not apply and the Labour Court lacked jurisdiction to determine the matter s.
It was submitted that a genuine dispute of fact existed regarding the amounts
claimed , which could not be resolved on the papers .
Judgment of the Labour Court
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[8] The Labour Court found that t he payment of normal monthly employee
remuneration and accrued leave until the termination of the contract of employment
were claims aris ing from and concerning a contract of employment and were ,
therefore, in terms of section 77(3) , justiciable by the Court. The claims for medical
aid contributions were found, however , to relate to the period post -termination of
employment during which the appellants provided services as independent
contractors and were not related to a contract of employment and were , therefore,
not justiciable.
[9] The Labour Court granted judgment in favour of the first appellant against
Gryphon Gold (Pty) Ltd for the sum of R350 000 for monthly remuneration owed and
R380 444,78 in respect of accrued annual leave, with his other claims dismissed for
want of jurisdiction. Judgment was granted in favour of the second appellant against
Heaven Sent Gold South Africa Property and Investment (Pty) Ltd, for R150 000 in respect of monthly remuneration owed and R150 000 in respect of accrued annual
leave due, with her other claims dismissed on the same basis . No order of c osts was
made in either matter.
On appeal
[10] The appellants contend on appeal that the Labour Court erred in dismiss ing
their claims for payment of their services rendered as independent contractors and in
respect of agreed medical aid contributions . This was so in that the settlement
agreements are agreements collateral to the employment contract, since they had
the effect of terminating the employment of the appellants and as such , amount to a
“matter concerning a contract of employment ” as envisaged in section 77(3). These
claims were therefore argued to be justic iable by the Labour Court since the entire
agreement concerned a contract of employment as envisaged in section 77(3) .
[11] The respondents oppose the appeal on the basis that the independent
contractor fee and contribution to medical aid were not claims collateral to their
employment contract s. This, it was argued, was evident from the fact that the
appellants’ employment relationships terminated in January and August 2020, and
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the settlement agreements w ith the appellants w ere entered into in January 2021. In
their cross -appeal , the respondents contend that a genuine dispute of fact existed in
relation to the quantum of the amounts claimed and seek an order that the Labour
Court’s orders in respect of the payment of monthly remuneration and accrued leave
be set aside. This, given that the appellants failed to plead that such remuneration
had not been paid and the amounts outstanding in respect of such remuneration or
leave pay were not quantified. Instead, the appellants invoiced the respondents for
payment of an independent contractor service fee, the total amount of which invoices
equals the amount claimed in their respective notices of motion. As a result, it was
contended that a ge nuine dispute of fact exists as to the amount s owing to each
appellant .
Evaluation
[12] The determination as to whether a matter concerns an employment contract
and therefore falls within the ambit of section 77(3) is both fact and context -
dependent. A dispute that “relates to, is linked to, or connected with an employment
contract ” falls within the ambit of section 77(3),
2 as does an agreement terminati ng
the employment contract .3 However , where a number of distinct claims exist in an
agreement, each claim must be scrutinised to determine whether section 77(3)
applies or not .4 The fact that one claim may be justiciable does not make all claims
recorded in an agreement justiciable.
[13] The appellants sought that a wide interpretation be afforded to section 77(3)
on the basis that the settlement agreement concluded concerned the termination of
employment , which created a sufficient link to their contracts of employment .
However, t he settlement agreement went further than simply resolving issues
pertaining to the appellants’ employment. It recorded the agreed terms of an
independent contractor agreement entered into between the parties , one which was
clearly not concerned with the previous employment contracts . In addition, it made
2 Lewarne v Fochem International (Pty) Ltd [2019] ZASCA 114; (2019) 40 ILJ 2473 (SCA) at para 8.
3 University of the North v Franks and Others [2002] ZALAC 13; (2002) 23 ILJ 1252 (LAC) at paras
29-30.
4 SA Municipal Workers Union on behalf of Morwe v Tswaing Local Municipality and Others [2022]
ZALAC 107; (2022) 43 ILJ 2754 (LAC) at para 9.
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provision for payment of medical aid contributions subsequent to the termination of
the appellants’ employment, when such contributions did not concern the appellant s’
prior employment contracts.
[14] The Labour Court correctly undertook a careful analysis of the terms of the
settlement agreement to determine which claims reflected in it were concerned with
the appellants’ employment contracts and which were not. This approach accorded
with the express language of section 77(3) , which grants the Labour Court
jurisdiction, concurrent with the civil courts, “ to hear and determine any matter
concerning a contract of employment ”. A sensible meaning, one that does not lead
“to insensible or unbusinesslike results ” and which accords with the express
language and apparent purpose of the provision,
5 is not one which expands the
jurisdiction of the Labour Court to matters which do not relate to or concern an
employment contract simply because an agreement records agreement on some
matters which do concern such a contract . Such an interpretation would not accord
with the express language of the statute.
[15] The agreement to provide services as an independent contractor is not
concerned with the appellant’s employment contract , although that agreement wa s
entered into when agreeing to terminate the employment contract . Similarly, the
agreement to make payment of medical aid contributions during the period in which
the appellants provide services as independent contractor s is patently a matter not
concerned with the employment contract.
[16] For these reasons, the Labour Court’s finding that the appellants ’ claims for
payment of monies claimed for services rendered as independent contractors and for
medical aid contributions were not justiciable cannot be faulted. Whereas t he Court
correctly concluded, in relation to the payment of remuneration that was expressly agreed in the settlement agree ment and the payment of accrued leave, that both
matters were concerned with and related to the contract of employment entered into
between the parties and that the Labour Court consequently had the requisite
jurisdiction to determine such claims.
5 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA) at para 18.
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[17] The quantum of the payment s claimed in respect of remuneration and leave
pay was set out in the appellants’ founding papers and were capable of determination. These amounts were not contradicted by the respondents, nor did the respondents dispute that the monies due had not been paid. The Court correctly
concluded that the globular sum claimed by the appellants less the independent
contractor fee and medical aid contributions amounted to the sum due in respect of
unpaid remuneration and accrued leave. The Labour Court consequently did not err in making the orders that it did, granting in relation to unpaid remuneration and
accrued leave pay that it did.
[18] For these reasons , both the appeal and the cross -appeal cannot succeed and
fall to be dismissed , with the orders of the Labour Court permitted to stand. Since
neither party has been successful on appeal, there is no reason in law or fairness why an order of costs should be made in this matter.
[19] For these reasons , the following order is made:
Order
1. The appeal is reinstated, and the late filing of the record is condoned.
2. The appeal and cross -appeal are dismissed.
3. There is no order as to costs.
SAVAGE AJP
Sutherland AJA and Davis AJA agree.
APPEARANCES:
FOR THE APPELLANTS: L Hollander
Instructed by Swarts Weil Van der Merwe Greenberg Inc.
FOR THE RESPONDENTS: M J Engelbrecht SC and F Karachi (heads by G A
Fourie SC and F Karachi )
Instructed by Werksmans Attorneys