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[2026] ZALCCT 50
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Adams v Jooma N.O. and Others (C350/2024) [2026] ZALCCT 50 (23 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No: C350/2024
In
the matter between:
VANESSA
ADAMS
Applicant
and
COMMISSIONER
LAMEESAH JOOMA N.O.
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION (CCMA)
Second Respondent
QUANTUM
LEAP CONSULTING (PTY) LTD
Third Respondent
WESTERN
CAPE GOVERNMENT
DEPARTMENT
OF CULTURAL AFFAIRS AND SPORT Fourth
Respondent
WESTERN
CAPE GOVERNMENT
DEPARTMENT
OF THE PREMIER
Fifth Respondent
Heard:
29 January 2026
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 judgment is
deemed to be 10h00 on 23 March 2026.
JUDGMENT
DE KOCK, AJ
Introduction
[1]
The
Applicant (“Adams”) referred a dispute to this Court
seeking an order that she was an employee of the Fourth Respondent
in
terms of section 200A of the Labour Relations Act
[1]
(“LRA”), that she was unfairly dismissed in terms of
section 185(a) of the LRA, and that she be awarded appropriate
relief
in terms of section 193(1) of the LRA for being unfairly dismissed.
[2]
The Third, Fourth and Fifth Respondents
objected to the referral on a number of grounds. The first ground is
that Adams should have
referred an unfair dismissal dispute to the
relevant bargaining council before approaching this Court. The second
ground is that
Adams was an independent contractor contracted by the
Third Respondent and not an employee of the State.
[3]
Insofar as condonation is required for the
late filing of the Fourth and Fifth Respondents’ answering
affidavits are concerned,
this Court has considered the respective
submissions. Given the complexity of the procedural history of this
matter and the absence
of prejudice to Adams in the circumstances,
condonation is granted.
Evaluation of
Jurisdiction
[4]
By way of background, Adams commenced
working as a business analyst on 1 December 2022. On 19 March 2024,
the Third Respondent issued
an extension of her fixed-term contract,
valid until 30 September 2024. Eight days later, on 27 March 2024,
the extension was unilaterally
cancelled. Adams referred a dispute to
the CCMA for conciliation. She subsequently approached this Court by
way of application
on 26 August 2024.
[5]
Adams was contracted as an independent
contractor of the Third Respondent and claims that she was unfairly
dismissed. Adams also
cited the Fourth and Fifth Respondents,
notwithstanding that her own pleadings disclose no employment
relationship with either.
[6]
The issue before this Court is first and
foremost an allegation of an unfair dismissal. It matters not whether
the alleged dismissal
was done by the Third, Fourth or Fifth
Respondents. What matters is that, since this is an alleged unfair
dismissal dispute, whether
for misconduct, incapacity or operational
requirements, this Court lacks jurisdiction to determine the alleged
dismissal dispute
as a court of first instance. The jurisdiction to
determine the alleged unfair dismissal lies with the relevant
bargaining council.
Adams in this case specifically relies on the
failure to renew a fixed-term contract of employment, as contemplated
in section
186(1)(b) of the LRA.
[7]
The question of whether Adams was an
employee or an independent contractor, and if she was an employee,
whether the Third, Fourth
or Fifth Respondent was her employer does
not clothe this Court with jurisdiction to hear the matter as a court
of first instance.
The correct forum is the relevant bargaining
council where Adams would have been required to firstly prove that
she was an employee
and not an independent contractor and once she
was able to show that she was an employee, to prove who her employer
was. Once the
employer was identified, Adams was required to prove
that she was dismissed and that her dismissal was unfair.
[8]
This Court can find no averment made in the
pleadings that would give this Court jurisdiction to determine the
aforesaid issues
as a court of first instance. Insofar as Adams
relies on section 200A, it is undisputed that Adams earned above the
threshold and
that section 200A is therefore not applicable to her.
[9]
It follows that this Court lacks
jurisdiction to entertain the referral as a court of first instance.
The Court addresses each ground
in turn.
Section 200A of the
LRA
[10]
Section 200A of the LRA provides for the
presumption as to who is an employee. Section 200A (1)(a) to (g)
lists the factors relevant
to the determination whether a person is
an employee.
[11]
Section
200A (2), however, states that subsection (1) does not apply to any
person who earns in excess of the amount determined
by the Minister
in terms of section 6(3) of the Basic Conditions of Employment Act
(“BCEA”).
[2]
[12]
It is undisputed that Adams at all material
times earned in excess of the threshold amount as determined by the
Minister in terms
of section 200A (2). That being the case, Adams is
not able to rely on the provisions of section 200A in support of her
claim that
she was an employee of the Fourth Respondent or of any
other Respondent for that matter. The relief sought in terms of
section
200A must therefore be dismissed.
Unfair Dismissal
[13]
Adams
claims that she was dismissed. This claim must be viewed in the
proper context. On the pleadings before this Court, Adams
was
contracted to the Third Respondent as an independent contractor. In
order for Adams to prove that she was dismissed, she must
first prove
that she was an employee of the Third Respondent, or of the Fourth
and Fifth Respondents. Whether Adams was an employee
or an
independent contractor must be determined by the forum which has the
required jurisdiction to determine the alleged unfair
dismissal
dispute. The Labour Court does not have jurisdiction to determine
this question unless such determination is directly
relevant to a
dispute referred to the Labour Court, which the Labour Court has
exclusive jurisdiction over as a court of first
instance. An example
would be a claim of an automatic unfair dismissal in terms of section
187 of the LRA.
[3]
[14]
The LRA establishes a compulsory
dispute-resolution scheme under which ordinary unfair dismissal
disputes must be referred to conciliation
and, if unresolved, to
arbitration. The Labour Court’s jurisdiction as a court of
first instance is limited to those categories
of dispute expressly
conferred upon it by statute, such as automatically unfair dismissals
under section 187 and matters referred
by the CCMA Director under
section 191(6). Adams, however, has not alleged that her alleged
unfair dismissal falls under the exclusive
jurisdiction of the Labour
Court. The allegation that Adams was unfairly dismissed falls
squarely within the provisions of section
191(5)(a), which requires
that the dispute must be arbitrated by the CCMA or a relevant
bargaining council. It is important to
note that the use of the word
“must” leaves this Court with no power to determine the
dispute as a court of first instance.
The CCMA or the relevant
bargaining council enjoys exclusive jurisdiction to arbitrate the
dispute and insofar as Adams referred
such a dismissal dispute to the
Labour Court, the claim must be dismissed due to this Court’s
lack of jurisdiction. Furthermore,
Adams did not obtain the consent
of the CCMA Director to refer the dispute directly to this Court, as
contemplated in section 191(6)
of the LRA. This provides an
additional and independent basis on which the referral to this Court
was incompetent.
[15]
During the course of the hearing, Adams
sought to raise an additional basis for relief in terms of section
77(3) of the BCEA, contending
that the dispute concerns the
unilateral rescission of a binding fixed-term contract extension and
is therefore contractual in
nature. Even on a generous reading of the
founding affidavit, this cause of action was not advanced in the
notice of motion, which
is the founding pleading defining the relief
sought. The notice of motion seeks only a declaratory order in terms
of section 200A
of the LRA and unfair dismissal relief in terms of
section 193 of the LRA. The section 77(3) argument was developed for
the first
time in Adams’ heads of argument and in oral
submissions. A new cause of action may not be introduced at that
stage. In any
event, and for completeness, even if this argument had
been properly pleaded, it would not avail Adams. Section 77(3) of the
BCEA
confers jurisdiction in respect of matters “concerning a
contract of employment.” Before Adams could engage that
jurisdiction,
she would first be required to establish the existence
of a contract of employment with the relevant respondent. On Adams’
own pleaded case, no contract of employment exists between her and
the Fourth or Fifth Respondents, and the contract between her
and the
Third Respondent is expressly one of independent contractorship.
Section 77(3) therefore affords Adams no basis for relief
in these
proceedings.
Conclusion
[16]
This Court therefore has no jurisdiction to
determine the section 200A dispute nor the alleged unfair dismissal
dispute and the
referral stands to be dismissed.
Costs
[17]
The only issue that remains to be
determined is whether Adams should be ordered to pay the Respondents’
costs. The Third,
Fourth and Fifth Respondents strongly argued that
this is an appropriate case where an order for costs should be made
against Adams.
[18]
The Respondents’ submissions have
been carefully considered by this Court, and the submissions are well
made. Parties should
not approach this Court with frivolous and / or
vexatious disputes. At the very least, a referring party as in the
case of Adams
must be of the bona fide belief that the Labour Court
has the required jurisdiction to determine her disputes.
[19]
This Court finds Adams’ actions in
not pursuing the dispute through the bargaining council and to,
instead, approach the Labour
Court to be ill-advised. However, this
Court is unable to conclude that Adams was acting
mala
fides
in approaching the Labour Court.
There is a huge difference between a party before this Court acting
mala fides
and engaging in action which was ill-advised and in fact the wrong
decision.
[20]
In terms of section 162 of the LRA, this
Court may make any order as to costs as is just and equitable, having
regard to the requirements
of the law and fairness. It bears emphasis
that this was most certainly a case where costs could have been
awarded in terms of
that section. Due to this ill-advised decision,
Adams has now lost her right to pursue her dispute before the correct
forum. It
will be unduly harsh, in this Court’s view, to now
also saddle Adams with costs. Any order as to costs will in all
probabilities
destroy Adams financially. Furthermore, ordering costs
against laypersons will also send out the wrong message about their
right
to approach the Labour Court to seek the resolution of their
disputes.
[21]
Individual employees must seek proper
guidance and advice before approaching this Court. If they fail to do
so, they certainly expose
themselves to what can be substantial
orders as to costs. Each case must be determined on its own merits,
and this Court will refrain
from ordering Adams to pay the costs of
any of the Respondents. This Court wishes to add an important
observation, however, specifically
regarding the position of the
Third Respondent. It is evident from Adams’ own pleadings and
heads of argument that she never
regarded the Third Respondent as her
employer. The Third Respondent filed exceptions at an early stage of
these proceedings, placing
Adams on notice that her claim against it
was without foundation on her own version. In those circumstances,
the proper course
was for Adams to withdraw her claims against the
Third Respondent at that point. This Court wishes to place on record
that where
a referring party persists in litigation against a
respondent after being placed on notice by means of an exception, and
where
the referring party’s own pleadings provide no basis
whatsoever for a claim against that respondent, such conduct will,
absent
compelling circumstances, justify a costs order against the
referring party even in the absence of
mala
fides.
The Court must also note that it
is not fair to employers to be dragged into expensive litigation by
ill-advised litigants and
that this Court will surely, in appropriate
cases, award costs where the referring parties acted
mala
fides
and / or frivolously, or
persisted against a respondent against whom they themselves advance
no credible basis for relief.
[22]
In the premises, the following order is
made:
Order
1.
The referral is dismissed for lack of
jurisdiction.
2.
There is no order as to costs.
C.
de Kock
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
In Person
For the Third
Respondent: J
MacRobert (John MacRobert Attorneys)
For the Fourth and Fifth
Respondent:
B Joseph SC
Instructed
by:
State Attorney
[1]
Act 66 of 1995, as amended.
[2]
Act 75 of 1997.
[3]
NUMSA
obo Members v BMW SA (Pty) Ltd (2025) 46 ILJ 2712 (LC).