THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: J1162/20
In the matter between:
RALEGOGO PHINEAS & 74 OTHERS Applicant
and
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY Respondent
Heard: 25 January 2022
Delivered: 02 February 2022 (through email)
Revised: 06 February 2026
Summary: Breach of contract claim – motion proceedings inappropriate
where a dispute of fact is anticipated. Failure to pay a salary is a breach of
a contract of employment claim, which entitles a party to make an election
to either cancel the employment contract and sue for damages or hold the
other party to the contract and sue for specific performance. A specific
performance claim is one that compels a party to adhere to the terms of
the contract and does not involve an order for payment of damages.
The Labour Court has concurrent jurisdiction with the High Court to
determine any matter arising from a contract of employment. A claim for
failure to pay any money, salary, leave pay and bonus included
constitutes a breach of a contract if the payment is guaranteed in a
2
contract. Accordingly, a party who is faced with a failure to pay any
money, and he or she falls under the prescribed threshold must approach
the CCMA and not the Labour Court for a dispute concerning the failure to
pay the money. Section 73A (3) of the Basic Conditions of Employment
Act (BCEA) ousts the jurisdiction of the Labour Court. The point of lack of
jurisdiction is upheld.
Costs – the applicants approached the Labour Court under section 77 (3)
of the BCEA jurisdiction. It being a civil matter, the principle of costs
following the results finds application.
Held: (1) The application is dismissed for want of jurisdiction. Held: (2)
The applicants to jointly and severally pay the costs of this application.
JUDGMENT
MOSHOANA, J
Introduction
[1] The Labour Court i s a creature of a statute. Where a statute ousts the
jurisdiction of the Labour Court, the Labour Court is not empowered to
act. Should it act without the necessary jurisdiction, its order becomes
brutum fulmen. Prior to 1 January 2019, the Labour Court under section
77 (3) of the Basic Conditions of Employment Act (BCEA)
1, was
empowered to entertain claims relating to payment of any money arising
from an employment contract. With the advent of section 73A of the
BCEA, the legislature empowered the Commission for Conciliation,
Mediation and Arbitration (CCMA) to resolve a dispute concerning the
failure to pay any amount owing to an employee in terms of the BCEA,
the National Minimum Wage Act, a contract of employment, a sectoral
1 Act 75 of 1997 as amended.
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determination or a collective agreement, if the employee falls within the
prescribed earning threshold. The present application involves an alleged
failure to pay a salary, leave pay and interest. The applicants chose to
approach this Court by way of motion as opposed to an action. In
opposing the application, the respondent, the City of Tshwane
Metropolitan Municipality (Tshwane) raised a barrage of preliminary
points of law. Inasmuch as there is merit in all of the preliminary points,
this judgment shall deal with only the jurisdictional impugn. In the Court’s
view upholding the point is dispositive of the entire application.
Background
[2] For the purposes of this judgment, it is unnecessary to punctiliously
narrate the facts of this matter. It suffices to state upfront that there exists
a material dispute of facts, which is incapable of resolution on the
papers. Later in this judgment, this Court shall en passant deliver a
comment on the choice of process by the applicants. This matter
involves about 74 “former employees” of Tshwane. I must upfront reveal
the strange and most puzzling feature of this application, which beggars
belief. Since 1 November 2019 until 31 October 2020, the former
employees never performed a day’s work and continued as such without
being paid a proverbial cent.
[3] This application was conceived on 30 September 2020, a month before
the expiry of the fixed term contracts of employment involved herein.
Before conception of the present application, the former employees
approached the South African Local Bargaining Council (SALBGC),
which declined jurisdiction over the salary dispute. Briefly, on or about 12
November 2019, Tshwane and the former employees concluded fixed
term contracts of employment. In terms thereof, Tshwane was to employ
the former employees as General Workers in its Department of
Environmental and Agricultural Management, at an all -inclusive salary
package of R10 735.00 per month.
4
[4] Since the conclusion of the fixed term employment contracts, none of the
former employees performed a day’s work. According to the former
employees, Tshwane failed in its contractual obligations to provide them
with any work. Tshwane disputes 61 of the alleged fixed term contracts
of employment. It testified that there was a syndicate that fraudulently
generated fixed term contracts of employment with a number of
employees. Nevertheless, after a failed attempt to resolve what was
termed by the former employees as “unfair treatment”, on 30 September
2020, the former employees launched the present application and
alleged a breach of contract alternatively a breach of section 32 of the
BCEA. I pause to mention that the founding affidavit in support of the
present application is shoddily drafted and fail in many respects to make
the necessary averments. Other than baldly alleging a breach of
contract, not a single clause of the contract allegedly breached, has been
identified in the papers. As pointed out earlier, the jurisdiction of this
Court to entertain the present application was challenged.
Evaluation
Jurisdiction of the Labour Court
[5] In motion proceedings, a party stands and fall by the allegations made in
the founding papers. In addition, the jurisdiction of a Court is sourced
from the allegations made in the pleadings. In alleging jurisdiction of this
Court, the deponent to the founding affidavit alleged that he had been
advised that this Court has jurisdiction in terms of section 77 (3) and 77A
(e) of the BCEA. Section 77 (3) affords this Court concurrent jurisdiction
to hear and determine any matter concerning a contract of employment.
Section 77A (e) gives this Court powers to order specific performance,
award damages or compensation.
[6] In order to place a matter within the reach of section 77 (3), a party must
allege and prove a matter concerning a contract of employment. It must
allege and prove a matter concerning a contract of employment. It must
be so that non-payment of a salary and leave pay is a matter concerning
a contract of employment. Therefore, prior to the introduction of section
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73A, the Labour Court had jurisdiction to deal with matters involving
salaries and leave pay in respect of all employees. That the Labour Court
did by exercising its jurisdiction under section 77 (3).
[7] Section 77 (1) affords the Labour Court an exclusive jurisdiction in
respect of all matters in terms of the BCEA. Recently, the Constitutional
Court in Amalungelo Workers Union and Others v Phillip Morris South
Africa Ltd and Another
2 clarified the meaning of section 77 and held that:
[24] What locates a matter within the jurisdiction of the Labour
Court is the application of the Basic Conditions Act to it. All
claims to which this Act applies fall within the exclusive
jurisdiction of the Labour Court…”
[8] It must follow that where the BCEA itself ousts the exclusive jurisdiction
of the Labour Court, the Labour Court cannot appropriate jurisdiction to
itself. What then guides the jurisdiction is the BCEA itself. Section 77 (1)
itself provides that ‘except where this Act provides otherwise’ the Labour
Court retains exclusive jurisdiction.
[9] There is no dispute that all the former employees were to earn below the
prescribed threshold. There can be no dispute that the former employees
are claiming money owed to them either in terms of the fixed term
contracts of employment or sections 32 and 75 of the BCEA. Section
73A (3) of the BCEA, specifically provides that:
“(3) An employee or worker, other than the employee or
worker referred to in subsection (1) may institute a claim
concerning the failure to pay any amount contemplated in
subsection (1) in either the Labour Court…”
2 [2019] ZACC 45 (26 November 2019)
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[10] Subsection (1) refers to any employee. The only employees excluded
from the dispute resolution process to be undertaken by the CCMA is the
ones falling outside the prescribed threshold. The former employees do
not fall outside the threshold. Mr Mokoape, who appeared on behalf of
the former employees, submitted that an employee enjoys an election
either to approach the CCMA or the Labour Court under section 77 (3).
The former employees elected to approach the Labour Court and should
not be non- suited, so went the submission. I am unable to agree. Once
an employee falls within the prescribed threshold, such an employee
must approach the CCMA to resolve a dispute concerning the failure to
pay any amount arising from various sources including a contract of
employment and the BCEA. Reference to ‘ may refer a dispute to the
CCMA’ made in subsection 73A (1) does not create an election but a
discretion to refer a dispute to the CCMA. In other words, an employee
may decide and is entitled to not to raise and refer the dispute to the
CCMA. However, if an employee falling under the prescribed threshold,
like the former employees before me, decides to raise a dispute
concerning failure to pay any money, the only legislated forum to deal
with that dispute is the CCMA. In Director General: Department of
Employment and Labour and Another v Green Secure Group
3, this Court
per my brother Van Niekerk J had to deal with the issue of the
retrospectivity of the section that ousted the jurisdiction of the Labour
Court. Of significance, Van Niekerk J recorded the following:
“[9] Both applicants accept that this Court does not have
jurisdiction where the ‘cause of action’ arose after the
amendment that took effect on 1 January 2019…”
[11] This acceptance as recorded is correct and well made. The phrase ‘other
than’ as employed in subsection (3) of section 73A , simply implies that
employees falling within the prescribed threshold should not come
3 (2020) 41 ILJ 189 (LC).
7
anywhere closer to the Labour Court to seek resolution of disputes
concerning the failure to pay any money. The dictionary meaning of the
word ‘other’ denotes a person or thing that is different or distinct from one
already mentioned or known. The phrase, ‘other than’ means apart from
or except.
[12] Accordingly, the former employees are excluded from approaching the
Labour Court in order to resolve their dispute concerning the failure to
pay salaries, leave pay and interest in terms of section 75. Thus, the
application falls to be dismissed for the want of jurisdiction. The
jurisdiction of the Labour Court is additionally controlled by section 157 of
the LRA. In terms of section 157 (5) the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if any employment law
requires the dispute to be resolved through arbitration. The BCEA is an
employment law and it requires that an unresolved dispute must be
resolved through arbitration (Section 73A (5) of the BCEA).
[13] It is indeed so, that what the former employees did was to astutely avoid
the provisions of section 73A of the BCEA. Had they employed the
provisions of the section, they had to refer the dispute to the CCMA for
con-arb. It is a matter of law that they must head to the CCMA and not of
choice. The Constitutional Court in Chirwa has long stamped out the
malady of forum shopping. It cannot be allowed to rear its ugly head
again.
Choice of process.
[14] Motion proceedings are not designed for resolution of dispute of facts
4.
Action proceedings are the best mechanism in resolution of dispute of
facts. By now, it is expected of any practitioner to have developed an
4 NDPP v Zuma [2009] 2 All SA 243 (SCA).
8
expertise with regard to the choice of process. It must be elementary that
when a material dispute of fact is anticipated and or foreseen, motion
proceedings must be ruled out. On the former employees’ own version,
prior to the institution of the present application, there has been various
correspondence made with regard to the alleged unfair treatment – not
being paid salary since 11 November 2019 – and Tshwane rejected the
allegation.
[15] Having not given the former employees any work or pay for a solid period
of eleven months, it must have dawned on the former employees and
their legal team that Tshwane is mounting a serious and material dispute
against the alleged unfair treatment. Indeed, when Tshwane responded,
it squarely placed in dispute the existence and the authenticity of 61 of
the alleged fixed term contracts of employment. With regard to the 14
admitted fixed term contracts, it placed in dispute performance by those
employees. Despite al l these, the former employees did not even
consider a request for the material dispute of fact to be referred for oral
evidence. Instead, Mr Mokoape brazenly persisted that there is no
genuine dispute of fact. One of the main allegations that a party suing for
a breach must allege and prove is the existence of the contract allegedly
breached. When the existence of a contract is placed in dispute, a Court
shall be faced with a material dispute of fact, which shall call for the
application of the Plascon Evans principle.
[16] In conclusion, motion proceedings are inappropriate in a matter involving
an alleged breach of contract. On application of the Plascon Evans rule,
the former employees would have failed had this Court accepted
jurisdiction over the matter.
The issue of costs
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[17] An interesting argument emerged from Mr Mokoape regarding the scale
of the costs to be awarded in this matter. Although the argument is , with
respect, nonsensical, it requires entertainment by the Court since it has
emerged. Mr Mokoape argued that should the Court award costs in
favour of the former employees, it must do so on a punitive scale
because the fixed term contract of employment provides so. In this
regard he made reference to clause 8 of the agreement which reads:
“8 You hereby indemnify the Municipality against any claim
of any nature whatsoever, including legal fees on an
attorney/client scale, arising from the deliberate or gross
negligent action or failure by yourself, unless the claim arises
directly or indirectly out of the deliberate or gross negligent
action or failure by the CoT, its employee(s) or agent(s).”
[18] In the first instance, this clause has nothing to do with litigation costs. It is
rather perplexing that counsel could remotely make a submission on
costs and rely on the above clause. The less said about this perplex the
better. The suggestion was that since Tshwane acted negligently by
failing to place facts about the alleged syndicate and corruption, it must
be mulcted with attorney/client costs. This, with respect to counsel, is the
most preposterous suggestion to make. Even on a benign selective
reading of the clause, no reasonable reader will emerge with such a
suggestion.
[19] When the Labour Court acts under section 77 (3) of the BCEA
jurisdiction, it acts as a civil Court. In civil matters, the principle of costs
following the results finds firm application. Tshwane has achieved
success in this matter. Thus, it is entitled to its costs. Regard being had
to the shoddy manner in which the Court papers were drafted; I, with the
greatest of respect, take a view that the poor former employees are the
victims of remarkable ineptitude and apparent dearth of skills on the part
victims of remarkable ineptitude and apparent dearth of skills on the part
of the legal team they employed. Unfortunately for them, they chose the
legal team and must suffer t he consequences of the ineptitude that is, in
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the Court’s view, so obstreperous. I truly believe that the legal team
involved herein is not entitled to any remuneration from the former
employees. At the time of conceiving the present application, section 73A
was almost two years in the statute books. Had this dispute – failure to
pay salaries – been referred to the CCMA, as it should have been, the
poor former employees may have received justice swiftly.
[20] Nevertheless, Tshwane is entitled to its success costs. Accordingly, the
former employees must jointly and severally be liable to pay the costs,
the one paying absolving the others.
[21] In the results, I make the following order:
Order
1. The jurisdictional point is upheld and the applicant s’ application is
dismissed for want of jurisdiction.
2. The applicants are jointly and severally liable to pay the costs of
this application, the one paying the others to be absolved.
_______________________
Graham Nasious Moshoana
Judge of the Labour Court of South Africa
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Appearances:
For the Applicants: Mr LJL Mokoape.
Instructed by: Mwim and Associates, Pretoria.
For the Respondent: Mr PH Kirsten
Instructed by: Machaka NC Incorporated, New Muckleneuk.