THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no: D61/2024
In the matter between:
HOSPERSA obo NAIDOO PRIYA First Applicant
HOSPERSA obo MTHETHWA SIFISO Second Applicant
and
MEMBER OF EXECUTIVE COUNCIL (MEC)
FOR HEALTH KZN Respondent
Heard: 5 February 2026
Delivered: 02 March 2026
JUDGMENT
PHAKEDI, AJ
Introduction and brief facts
[1] This is an opposed application brought in terms of section 77 (3) read with
section 78 of the Basic Conditions of Employment Act (BCEA) 1 wherein the
applicants seek an order in the following terms:
1 Act 75 of 1997, as amended.
(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
‘1. The Respondent is directed to adjust the first and second applicants’
salary scale to first notch of salary level 10 forthwith;
2. The Respondent is directed to calculate the first and second
applicants’ back pay, on notch 1, salary level 10 from 1 October 2017
to date of this order, within ten days of service of this order;
3. The Respondent is directed to make payment of all amounts due to
the first and second applicant, as calculated in terms of paragraph 2
above, within three days of expiry of the period referred to in
paragraph 2 above;
4. The Respondent is directed to pay the costs of this application;
5. Further and/or alternative relief.’
[2] Prior to being employed by the respondent, the two employees were
employed by S aint Mary’s Hospital which was later converted into a public
hospital under the management of the KwaZulu -Natal Provincial Department
of Health, as of 1 October 2017. As a result of this conversion, both
employees were formally offered employment contracts on 29 September
2017. Ms Priya Naidoo accepted and signed her contract of employment on
the same day, while Mr Sifiso Mthethwa accepted and signed his contract on
1 October 2017.
[3] In terms of signed contracts, Ms Naidoo is employed in the position of
Assistant Director: Human Resources on a salary level 9 and the salary notch
of R404 121.00 per annum plus allowances and benefits . And the second
applicant, Mr Mthethwa, is employed as Assistant Director: Finance on a
salary level 9 and the salary notch of R404 121.00 per annum plus
allowances and benefits.
[4] On or during March 2019, their grievance was escalated to the Department of
Public Service and Administration (the DPSA). On 23 December 2019, they
received a response from Professor Richard Levin addressed to Mr C .
Naicker, the Provincial Manager: Public Servant Association of South Africa.
In the said response, Professor Levin had recorded as follows:
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‘Dear Mr Naicker
RECTIFICATION OF SALARY NOTCHES AWARDED TO EMPLOYEES ON
TRANSFER FROM A PRIVATE HOSPITAL TO DEPARTMENT OF HEALTH
(KWAZULU-NATAL)
1. Thank you for your letter dated 19 March 2019.
2. To secure a permanent solution in this regard, I have advised the
Head: Health (KwaZulu-Natal) to implement the following:
2.1 The affected employees be awarded the first notch of salary
level 10 (R417 552.00) which is the next level higher valid
notch available on PERSAL Table 264, on transfer to the
Department of Health, effective from 1 October 2017.
2.2 The notch be adjusted on 1 April 2018 and 2019 in terms of
the 2018 and 2019 DPSA salary circulars to effect the
employees’ 2018 and 2019 cost-of-living adjustments.
Kind regards’
[5] The Applicants allege that they are not being remunerated according to their
signed employment contracts, and the respondent has failed and/or neglected
to implement the solution prescribed by the DPSA outlined above.
[6] The Respondent is opposing this application on the basis that there is no
breach of contract and the applicants are being remunerated in line with
clause 6 of their signed contracts of employment. It is further submitted that
the letter dated 23 December 2019 was never brought to the attention of the
Respondent, as it was addressed to another Trade Union, the Public Servants
Association and it only came to the attention of the Respondent when it
received the current application on or during February 2024. F urthermore, the
applicants in this application are not seeking to enforce any term of their
contract, but the contents of the letter received from the DPSA and this is
irregular.
Jurisdiction of the Labour Court
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[7] Section 77(3) of BCEA 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.’
[8] In terms of this section, any claim that has to do with a dispute over a contract
of employment , that could be brought in a civil court , falls within the
jurisdiction of the Labour Court. It is trite that j urisdiction is decided on the
pleadings filed by an applicant/plaintiff . In an application, the pleadings are
constituted by the Notice of Motion and the supporting affidavits.2
[9] The SCA in Makhanya v University of Zululand 3 stated that the pleadings of a
case were definitive:
‘…the claim that is before a court is a matter of fact. When a claimant says
that the claim arises from the infringement of the common law right to enforce
a contract, then that is the claim, as a fact, and the court must deal with it
accordingly…’
[10] The Constitutional Court in Amalungelo Workers' Union and Others v Philip
Morris South Africa (Pty) Limited and Another 4 held that section 77(3)
expands the Labour Court’s jurisdiction to cover disputes arising from
contracts of employment even if they are not regulated by the Act. But in that
event, the jurisdiction is not exclusive. It is shared with the civil courts. In order
for the applicant to succeed with his contractual claim, his right must be found
in the written contract, either express or implied.
[11] The applicants in this matter are presently being remunerated in terms of
clause 6 of their signed contracts of employment, which provides that:
‘REMUNERATION:
2 South African Municipal Workers Union obo Morwe v Tswaing Local Municipality and Others (LAC)
(unreported case no JA12/21, [2022] ZALAC 107; (2022) 43 ILJ 2754 (LAC) (27 September 2022) at
para 5.
3 [2009] 8 BLLR 721 (SCA); [2009] ZASCA 69 at para 71.
4 (CCT20/18) [2019] ZACC 45 at para 23.
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Your salary will be based on level 9, your salary will be R404 121.00 per
annum plus allowances and benefits listed hereunder. Any overpayment or
underpayment erroneously effected will be recovered or rectified when
discovered.’
[12] The applicants cannot seek to rely on a letter addressed to a third party who
is not in a position of authority to implement the proposed solution. The Public
Servant Association of South Africa is a trade union representing public
servants and does not have powers to implement the recommendations of the
DPSA. It is therefore concluded that the Applicants have failed to substantiate
their claim for breach of contract as they are being remunerated according to
their signed agreement with their employer.
Entitlement to a declaratory order
[13] The basic principle in litigation is that in order to be entitled to a relief, the
applicant must make out his case in his founding papers. A declaratory order
is an order by which a dispute over the existence of some legal right or
entitlement is resolved. In Shoba v O fficer Commanding, Temporary Police
Camp, Wagendrift Dam, and Another; Maphanga v Officer Commanding,
South African Police Murder and Robbery Unit, Pietermaritzburg, and Others
5
Corbett CJ laid the following principle with regard to declaratory relief:
‘An existing or concrete dispute between persons is not a prerequisite for the
exercise by the Court of its jurisdiction under this subsection, though the
absence of such may, depending on the circumstances, cause the Court to
refuse to exercise its jurisdiction in a particular case… But because it is not
the function of the Court to act as an advisor, it is a requirement of the
exercise of jurisdiction under this subsection that there should be interested
parties upon whom the declaratory order would be binding… ’
[14] The LAC in Passenger Rail Agency of South Africa and Others v Ngoye and
Others6 held that:
5 1995 (4) SA 1 (A); [1995] ZASCA 49 at 14F-I.
Others6 held that:
5 1995 (4) SA 1 (A); [1995] ZASCA 49 at 14F-I.
6 (JA78/21) [2024] ZALAC 18; (2024) 45 ILJ 1228 (LAC) (26 March 2024) (footnotes omitted).
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‘[28] While there are provisions in the legislation, notably section 77(3), that
endow the Labour Court with authority to adjudicate contractual
claims. In my view, these provisions must be interpreted by having
regard to the objectives sought to be achieved by the labour law
dispensation as a whole. I do not believe that the intention of the
legislature in enacting section 77(3) was to give the Labour Court
jurisdiction over disputes that arise from dismissals and ULPs which
should, in the first instance, be categorised as unfair dismissal
disputes or unfair labour practice disputes a nd dealt with by the
CCMA. In dealing with employment disputes, our first point of
reference should be the constitutional right to fair labour practices,
which is given effect in the LRA.
[29] The motive for litigants choosing to follow an alternate route to that
which is set out in the LRA is seemingly to be awarded a quicker
remedy than that which is available in terms of the LRA. However, it
appears that litigants are not aware of the requirements that must be
met to qualify for a contractual remedy such as specific performance
or damages. This is potentially the reason for the proliferation in the
use of contractual recourse. In this regard, I refer to what was said by
this Court more than five years ago in Toyota SA Motors (Pty) Limited
v Nzuza and others:
“….it appears to have become fashionable for dismissed
employees to come to the Labour Court in terms of the BCEA
and claim breach of contract seeking either specific
performance or damages. I do not know the reason that has
given rise to this, but the risk associated with claims made in
terms of the BCEA, as in this matter before this Court, is
enormous. Firstly, unlike in the LRA the claimant must prove
an unlawful breach and not unfairness for the termination of
the employment; next in terms of the LRA r einstatement is
generally compulsory where a dismissal is found to be
substantively unfair, specific performance consequent upon a
substantively unfair, specific performance consequent upon a
breach is not, and generally it is a discretionary relief.”’
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[15] I am not satisfied that the applicant has made out a case for this court to grant
the relief sought in his founding papers. Section 77A(e) deals with the powers
of the Labour Court and provides that:
‘the Labour Court may make any appropriate order, including an order making
a determination that it considers reasonable on any matter concerning a
contract of employment in terms of section 77 (3), which determination may
include an order for specific performance, an award of damages or an award
of compensation.’
Costs
[16] This is a civil matter launched in terms of section 77(3) of BCEA , which
confers the Labour Court with concurrent jurisdiction with the civil courts .
Accordingly, the principle of costs not following the results does not find
application.7 I believe that the respondent’s opposition to this application was
warranted and reasonable.
[17] Accordingly, the following order is made:
Order
1. The application is dismissed with costs.
_______________________
G C Phakedi
Acting Judge of the Labour Court of South Africa
7 Skinner & Others v Nampak Products Limited & Others (2021) 42 ILJ 838 (LAC) at para 47.
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Appearances:
For the Applicant: B Zulu
Instructed by: Rajaram Mvulane Attorneys
For the Respondent: C Ngongoma
Instructed by: State Attorneys, KZN