THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JS205/19
In the matter between:
SOLIDARITY obo SB PRETORIUS Applicant /Plaintiff
and
SIZWE SECHABA HOLDINGS (PTY) LTD First Respondent/Defendant
SIZWE SECHABA PROPERTIES (PTY) LTD Second Respondent/Defendant
SIZWE SECHABA CONSTRUCTION (PTY) LTD Third Respondent/Defendant
Heard: 6 March 2025
Delivered: 7 May 2025 (This judgment was handed down electronically by
circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing -
down is deemed to be 10h00 on 7 May 2025.)
JUDGMENT
2
PHEHANE , J
Introduction
[1] This is an application by Solidarity on behalf of its member, the plaintiff , to join
the second and third defendant s to proceedings that it instituted against the first
defendant for unpaid salaries over the period February 2017 to December 2018 in
the amount of R592 000.00, and in terms of the provisions of section 77(3) read with
section 77A(e) of the Basic Conditions of Employment Act
1 (BCEA).
Background
[2] The plaintiff claims that he was employed by the first defendant in Ap ril 2014
in the position of Property Development Manager until his services were terminated in December 2018 for what he terms to be unknown reasons.
[3] The plaintiff subseque ntly launched a referral against the first defendant in
this Court on 19 March 2019. The first defendant opposed the referral essentially on
the basis that the plaintiff was at no stage employed by it ; rather, the plaintiff was
appointed as an independent contractor. This raises a question of this Court’s
jurisdiction to adjudicate the plaintiff’s referral. This jurisdictional point is referenced
in paragraph 6 of the pretrial minute that was concluded between the parties on 6
August 2019. The plaintiff avers that his employm ent status is a matter for evidence
at the trial proceedings.
[4] Pursuant to discovery procedures , the plaintiff avers that he discovered that
his salary was paid to him by the first, second and third defendants. The plaintiff
contends that in e -mail correspondence by the first defendant’s attorneys on 21
August 2023,
2 the first defendant stated that the discovered documents revealed that
the plaintiff was paid by the second defendant , which had not been cited as a party
1 Act 75 of 199 7.
2 Pleadings, annexure “P3” on pp 27 to 28.
3
in the referral. Consequently, this application was launched by the plaintiff on 4
September 2023 to join the second and third defendan ts in the main action.
[5] This joinder appliation is opposed by the first, second and third defendants on
the basis that firstly, the plaintiff has failed to make out a case for joinder , and
secondly, should this Court agree that the second and third defendants be joined to
the main action, the defendants submit that the plaintiff’s claim against the second
and third defendants has prescribed, as the plaintiff failed to insitute proceedings
within a period of three years from the date its claim arose as contemplated in the
Prescri ption Act.3
[6] In reply to the second challenge, the plaintiff relies on section 12 of the
Prescription Act , which pr ovides that prescription shall not commence to run until the
creditor becomes aware of the debt in circumstances where the debtor wilfully
prevents the credi tor from coming to know of the existence of the debt. As I
understand this contention, the plaintiff ’s version is that he only became aware at
discovery stage that he was paid by the second and third defendants. I deal with this version below.
[7] In reply to the first challenge, the plaintiff alleges that it has made out a case
for joinder.
Legal framework
[8] When this joinder application was launched, it was brought in terms of the
now-repealed Rule 22 of the Rules of this Court
4, which reads essentially the same
as Rule 52 of the new Rules of this Court .5 Rule 52(1) and (2) read:
‘(1) At any time before judgment is delivered, the court may join any
number of persons, whether jointly, jointly and severally, separately, or in the
3 Act 68 of 1969.
4 GN1665 of 1996, repealed effective 17 July 2024.
5 Rules Regulating the Conduct of the Proceedings of the Labour Court published under GN4775a in
GG 50608 of 3 May 2024.
4
alternative, as parties in proceedings, if the right to relief depends on the
determination of substantially the same question of law or facts.
(2)(a) The court may, of its own motion or o n application and on notice to
every other party , make an order joining any person as a party in the
proceedings if the party to be joined has a substantial interest in the subject
matter of the proceedings .
(b) When making an order in terms of paragraph (a), the court may give
such directions as to the further procedure in the proceedings as it deems fit
and may make an order as to costs .’ (Own emphasis).
[9] It is now well established that a party that is to be joined to proceedings must
have a direct and substantial interest in the matter. Further , only parties that would
be directly affected by the court order or whose rights would be prejudiced by the
court order and, therefore, are required to be heard before such order is made to
sustain it or given effect thereto , are necessary parties to the proceedings .
[10] The learned authors, van Niekerk JA and Prinsloo J
6 quote this principle from
the decision of the Labour Appeal Court in Murray and R oberts (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitr ation7 which held as follows:
‘[24] It is a trite proposition of law that a person must be joined as a party to
court proceedings if that person has an interest which is of such a nature that
she (or he, or it ) may be prejudicially affected by the judgment in the
proceedings. The true test for a joinder has also been said to be whether the
person has a “direct and substantial interest ” in the proceedings. It is
generally accepted that “direct and substantial interest ” means a legal interest
in the subject matter of the proceedings (ie litigation ) which could be
prejudicially affected by the judgment of the court .
[25] In Cape Bar Council , the Supreme Court of A ppeal reiterated those
basic tenets of the law . The joinder of a part y is only required if it is a matter of
necessity, and not for convenience. The mere fact that the party has an
interest in the outcome of litigation does not warrant its joinder, and the
6 C Prinsloo, A van Niekerk, Labour Court Manual at p 86.
7 [2019] 11 BLLR 1224 (LAC) at paras 24 to 25.
5
interest must be “direct and substantial ” in the sense mentioned earlier.
Similarly , in Makwela, this Court confirmed those principles. This Court
specifically held that in court proceedings regarding a claim founded on a
contract, a person that was not a party to the contract and had no rights or
obligations in respect of it, did not have to be joined as a party. ’ (Own
emphasis)
Submissions and analysis
Direct and substantial interes t
[11] Has the plaintiff demonstrated that the second and third respondents have a
direct and substantial interest in the main proceedings? The answer is a resou nding
‘no’ for the reasons that appear below.
[12] The plaintiff submits that the defendants operate from the same premises and
are controlled by the same indi vidual, namely, Mr. Brian Eustance Wille Bestenbier
(Mr Bestenbier). This is not disputed. The plaintiff alleges that during the course of his employm ent, he was instructed by Mr. Bestenbier to perform services for the
second and third defendants , such that he was paid by all three defendants during
the period of his employment.
[13] As stated above, t he plaintiff relies to a large extent on the email by the first
defendant’s attorneys discussed above as the catalyst for the joinder application. This email was misconstrued by the applicant . The first defendant simply states that
the documents discovered reveal that the plaintiff was paid by the second
respondent who is not cited as a party to the proceedings and the first defendant
further reiterates the content of its plea that no contract of employm ent was
concluded between it and the plaintiff and therefore, the pl aintiff had instituted the
action against the wrong party and he is urged to withdr aw the action and tender
costs. This email is not a basis for joining the second and third respondents to the
main action, as it does not demonstrate that the second and third respondents have a direct and substantial interest in the main action. Further, the defendants operating from the same business premises is not suffic ient to demonstrate that the second
and third defendants have a direct and substantial interest in the main action. More
6
than a financial interest is required to join a party to proceedings. Thus, the
contentions of the plaintiff on which its case is premised do not make out a case for
joinder – at best, these contentions point a joinder for convenience, which does not
constitute the legal basis for joinder. Put differently, convenience does not c onstitute
a legal direct and substantial interest that necessitates a party to be joined to litigation.
Jurisdiction
[14] Before joinder can arise, the Court must have jurisdiction to adjudicate the
main action.
[15] As stated above, t he parties identif ied the preliminary point on jurisdiction in
their pre-trial minute, premised on the first defendant’s challenge that the plaintiff
was not its employee. This jurisdictional challenge is persisted with by the defendants in opposing the joinder application – the defendants deny that the plaintiff
was an employee and allege that the plaintiff was contracted as an independent
contractor to render services to the defendants , who operate in different industries.
[16] The plaintiff has not pleaded any contract of employment between him and
the s econd and third defendants that could establish their obligations towards him in
relation to the litigation he has instituted against the first defendant that could demonstrate that the second and third defendants have a direct and substantial interest in the main proceedings.
[17] The defendants contend that the plaintiff’s own documents in the form of bank
statements reflect differing amounts of monies he received from the seco nd and third
defendants, some comprised of loans to the plaintiff and none of these payments
constitute a salary.
[18] Therefore, an issue that is yet to be determined between the plaintiff and the
first defendant before joinder c an be adjudicated is whether this Court has
jurisdiction to adjudicate the referral in instances where the defendants allege that
7
the plaintiff was not their employee but an independent contractor. The plaintiff
insists that this is a matter for evidence at trial.
[19] In view of the decision of the Labour Appeal Court (LAC) in Intervalve (Pty)
Ltd and Another v National Union of Metalworkers of SA obo Members
8, where the
LAC stated that in the absence of jurisdiction , joinder does not arise. Therefore, until
such time that jurisdiction is determined, this joinder application is ill -conceived.
Prescription
[20] On the Plascon Evans
9 rule, the plaintiff’s version that he became aware that
he was paid by the second and third defendants in August 2023 is improbable .
[21] It is improbable that an employee who had not received a salary for 23
months would remain mum over such an extended period of time and only demand payment from the first respondent for unpaid salaries close to two years later.
[22] The bank statements are those of the plaintiff. He was well aware from
inception which entities were depositing funds into his bank account , but he took no
steps against those entities.
[23] This raises the question of prescription in relation to his claim against the
second and third defendants , which he seeks to join to the main action – the claim
against the sec ond and third respondents has prescribed.
[24] In the circumstances of the claim against the second and third defendants
having prescribed, it would be inappropriate to join parties to litigation where there
are no proceedings in which the party sought to be joined can participate.
10
Costs
8 (2014) 35 ILJ 3048 (LAC) at para [11].
9 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
10 See: Du Preez v LS Pressings CC & Another (2013) 34 ILJ 634 (LC) at para [17] discussed in
Labour Court Manual , supra at p 87.
8
[25] The plaintiff was aware on its own version that from 2017 to 2018, it was paid
by the defendants. When he did not rec eive his salary for 23 consecutive months , he
did nothi ng. Four years later, with the knowledge that he received monies in his bank
account from the second and third defendant s, he launched this joinder application.
He brings this application, insisting that juris diction be determined after evidence is
led on whether or not he was an employee of the defendants. The plaintiff is legally represented and ought to have known that there can be no joinder without
jurisdiction and no joinder when there is no live litigation .
[26] This joinder application is ill- conceived. I do not see why , in such
circumstances , the defendants shoul d be out of pocket, as they have incurred costs
defending a hopeless application that ought not to have seen the light of day.
[27] In the premises, the order is as follows :
Order
1. The joinder application is dismissed with costs.
M.T.M. Phehane
Judge of the Labour Court of South Africa
Appearances:
For the plaintiff: Mr Hanekom of Solidarity .
For the defendants : Adv Mbhalati (Ms)
Instructed by: Hajibey Bhyat Inc.