IN THE LABOUR COURT OF SOUTH AFRICA
Case no: J4709B/00
In the matter between
Applicant
and
Respondent
REASONS FOR JUDGMENT
MOERANE A.J
[1] In this matter the Respondent has raised two points in limine in the
following terms:
(1) No case number was reflected on the Applicant =s application served on the
Respondent as required in terms of the Labour Relations Act and
accordingly the Application is defective.
(2) The Applicant relies upon a dismissal which took place on Α 14 August
2000≅ at ΑCape Town ≅ which the Respondent avers is a cause of action
different from the facts in this matter and accordingly this Honourable Court
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does not have jurisdiction to hear this matter.
[2] The points in limine were set down for hearing on 10 August 2001 on the
motion roll. The Respondent abandoned the first point in limine and argued
the second. After hearing both parties I dismissed both points in limine with
costs and indicated that I would furnish reasons later.
[3] These are my reasons:
[4] With regard to the first point in limine it clearly has no merit, was ill-
considered and Mr Bleazard, who appeared for the Respondent wisely
abandoned it. I need not say anything further about it.
[5] With regard to the second point in limine: it has been raised in the form of
an exception in the sense in which the expression is understood in the civil
procedure of South Africa. The Respondent is complaining of a defect
inherent in the pleadings. It is trite that where an exception is taken, the
court must look at the pleading excepted to as it stands: no facts outside
those stated in the pleading can be brought into issue and no reference
may be made to any other document. (See Erasmus: Superior Court
Practice: B1- 151 Service 15 2001).
[6] The Applicant relies on a dismissal for operational requirements which took
place on 14 August 2000, which was referred to the Commission for
Conciliation, Mediation and Arbitration(CCMA) for conciliation on 18 August
2000 and in respect of which the CCMA issued a certificate of outcome
dated 21 September 2000 stating that the matter remained unresolved.
[7] It is common cause that on 26 May 2000 the Applicant was advised by the
Respondent to stay at home as his current position had been redundant and
pending the interviews for the sourcing position he was not required to
render services for the Respondent.
[8] It is also common cause that on 24 July 2000 the Applicant received a letter
from the Respondent informing him that due to the restructuring his current
portfolio no longer existed, that he had been invited to re-apply for suitable
vacancies within the structure but that he had been unsuccessful in his
application for the sourcing position and that his last day of employ would
be 22 September 2000.
[9] Section 190 of the Labour Relations Act is headed "Date of Dismissal" and
provides as follows:
(1) The date of dismissal is the earlier of -
(a) the date on which the contract of employment terminated; or
(b) the date on which the employee left the service of the employer.
(2) Despite subsection (1)--
(a) if an employer has offered to renew on less favourable terms, or has failed
to renew, a fixed-term contract of employment, the date of dismissal is the
date on which the employer offered the less favourable terms or the date
the employer notified the employee of the intention not to renew the
contract;
(b) if the employer refused to allow an employee to resume work, the date of
dismissal is the date on which the employer first refused to allow the
employee to resume work;
(c)if an employer refused to reinstate or re-employ the employee, the date of
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dismissal is the date on which the employer first refused to reinstate or re-
employ that employee.
[10] It is clear that if the above-mentioned provisions of the Act were to be
applied to the facts of this case there would be at least three possible dates
of dismissal namely, 22 September 2000, if one applied section 190 (1) (a);
24 July 2000, if one applied section 190 (2)(a); or 26 May 2000, if one were
to apply section 190(2) (b). As was submitted by Mr Landman for the
Applicant, correctly, in my view, the question of determining the date of
dismissal is both a factual and legal one which entails leading and
evaluating evidence led by the parties on the issue. (See Northam v Uunet
Internet Africa (Pty) Ltd & Others (1998) 19 ILJ 862 (LC) at 866 A-C ). It
matters not that the date relied upon by the Applicant may be a wrong
date. That, of or by itself, does not render the Statement of Claim excipiable
as disclosing no cause of action.
[11] In order to succeed in its second point in limine the Respondent had the
duty to persuade me that upon every interpretation which the Statement of
Claim can reasonably bear no cause of action is disclosed.
[12] This the Respondent failed to do and consequently I did not uphold the
second point in limine.
________________
MOERANE A.J
20 August 2001