THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J07/2022
In the matter between:
ABDURAGIEM STOFBERG Plaintiff
and
TOWERPLAN AFRICA (PTY) LTD Defendant
Heard: 21 August 2025
Delivered: 22 August 2025
Summary: Application for relief under the Basic Conditions of Employment Act No.
75 of 1997. Application struck from the roll.
JUDGMENT
DANIELS J
Introduction
2
[1] The plaintiff alleges that the defendant breached his employment contract and
further breached his subsequent retrenchment agreement. He seeks relief under
section 77(3) of the Basic Conditions of Employment Act 75 of 1997. The defendant
raised a ‘point in limine ’ that the court lack s jurisdiction to hear the dispute. This
‘point in limine’ would have more properly been termed an exception, but that is
putting form over substance. This judgment concerns only the in limine issue.
Material facts
[2] The plaintiff was employed by the defendant between 2015 and 2021. The
terms of the employment contract were not recorded in writing. The plaintiff alleges
that there was a tacit term to the contract that the plaintiff would work and be paid for
overtime when this was necessary.
[3] During 2021, the parties concluded a retrenchment agreement in full and final
settlement of all claims the plaintiff may have against the defendant . Clause 5 of the
agreement provides as follows:
“5. The employer undertakes to pay any and all overtime worked on the
specific instructions of management . The employee is required to submit a
claim for the hours worked, management will reconcile and affect payment
soonest, it is therefore agreed to effect payment on or before 31 May 2021 or
latest 30 June 2021.”
(own emphasis)
[4] The plaintiff submitted a claim for the overtime he had worked. The defendant
refused to pay the monies on the basis that it had not specifically instructed the
plaintiff to work any overtime.
[5] On the pleadings, it is common cause that the plaintiff did not receive specific
instructions or authorisation to work overtime.
Legal analysis
3
[6] The plaintiff directed the court’s attention to the authorities. The authorities
suggest that section 77(3) of the BCEA should not be narrowly construed.
In University of the North v Franks and others
1 the LAC held that the jurisdiction of
the Labour Court, in terms of section 77(3) of the BCEA, encompasses the “….
termination of an employment contract and the terms and conditions upon which this
is to occur”. Similarly, in Rand Water v Stoop & another 2 the LAC held that this
court’s jurisdiction, in terms of section 77(3), is not confined strictly to the
employment contract. More recently, in Van Vuuren v Heaven Sent Gold SA (Pty)
Ltd and another 3 the LAC stated: “A dispute that “relates to, is linked to, or
connected with an employment contract” falls within the ambit of section 77(3), as
does an agreement terminating the employment contract.”
[7] It is clear from the authorities that a claim under section 77(3) of the BCEA
may well extend to the enforcement of a mutual separation agreement, or a
retrenchment agreement. However, here, this is not the issue. What is at issue is
whether the statement of claim sets out facts sufficient to sustain a cause of action.
[8] Rule 14(1) of the Rules of this Court states as follows: “ ..a statement of claim
… lacks averments which are necessary to sustain an action or defence …” . It is
clear therefore that a statement of claim must contain the factual and legal
averments necessary to sustain the action.
[9] In Trope v South African Reserve Bank
4 the Appellate Division explained a
similar requirement in the Uniform Rules of Court as follows:
“It is trite that a party has to plead - with sufficient clarity and particularity - the
material facts upon which he relied for the conclusion of law he wishes the Court to
draw from those facts (Mabaso v Felix 1981 (3) SA 865 (A) at 875A-H; Rule 18(4)).
It is not sufficient, therefore, to plead a conclusion of law without pleading the
1 [2002] 8 BLLR 701 (LAC) at para [30]
1 [2002] 8 BLLR 701 (LAC) at para [30]
2 (2013) 34 ILJ 576 (LAC)
3 (JA 75/23; JA 76/23) [2025] ZALAC 21 (17 March 2025) at para [12]
4 1993(3) SA 264 (A)
4
material facts giving rise to it. (Radebe and Others v Eastern Transvaal Development
Board 1988 (2) SA 785 (A) at 792J-793G.)”
(own emphasis)
[10] It is trite that jurisdiction must be determined by the pleadings, and should not
be confused with the merits.5
[11] In this matter, it is common cause that the retrenchment agreement was
concluded in full and final settlement of all claims between the parties. It is also
common cause that the defendant did not issue specific instructions to the plaintiff to
work overtime. Accordingly, on the pleadings of this matter, the plaintiff cannot be
successful regardless of the evidence presented at trial.
Order
1. The matter is struck from the roll for lack of jurisdiction.
R Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Plaintiff:
Adv Bobison-Opoku
Instructed by: AJ Venter Inc
For the Defendant:
Adv R Carratu
Instructed by: ( )
5 Gcaba v Minister for Safety and Security and others 2010 (1) SA 238 (CC) at para [75]