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[2013] ZACC 43
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Mbatha v University of Zululand (45/13) [2013] ZACC 43; 2014 (2) BCLR 123 (CC); (2014) 35 ILJ 349 (CC); [2014] 4 BLLR 307 (CC) (5 December 2013)
CONSTITUTIONAL COURT
OF SOUTH AFRICA
Case
CCT
45/13
[2013]
ZACC 43
In the matter between:
MPUMELELO OBED MBATHA Applicant
And
UNIVERSITY OF ZULULAND Respondent
Heard on : 5 September 2013
Decided on : 5 December 2013
JUDGMENT
ZONDO J:
Introduction
[1]
The
applicant, Mr Mpumelelo Obed Mbatha, has brought an application for leave to
appeal to this Court against a decision of the
Labour Appeal Court dismissing
his appeal against a decision of the Labour Court. The Labour Court dismissed
the applicants application
for an order that the respondent, the University of
Zululand
[1]
(Unizul),
pay him his salary. The Labour Appeal Court upheld the decision of the Labour
Court and dismissed his appeal with costs.
Background
[2]
The
applicant was employed by Unizul as a researcher in the Zulu Dictionary Project
with effect from 1 September 1984. His letter
of appointment reflected that it
was compulsory for him to be a member of the Associated Institutions Pension
Fund, Group Life
Insurance Scheme and Bonitas Medical Fund.
[3]
The
Pan South African Language Board (PanSALB) is a statutory body established by
the Pan South African Language Board Act.
[2]
In terms
of that Act, PanSALB is required to establish national lexicography units as
companies limited by guarantee. It caused
the registration of Isikhungo
Sesichazamazwi SesiZulu
[3]
(ISS) as
a section-21 company
[4]
to be one
of the units it would use to promote isiZulu.
[4]
It
must have made sense to PanSALB that it should work together with Unizul with
regard to the project of an isiZulu dictionary
because, from as early as 1984
when the applicant was employed by Unizul, Unizul already had an Zulu
Dictionary Project. On 25
September 2002 PanSALB concluded a tripartite
agreement with Unizul and ISS to regulate the parties relationship on the
project
of an isiZulu dictionary. At that time the applicant was still in
Unizuls employ.
[5]
It
is necessary to discuss some features of the tripartite agreement. The
preamble reflects that each one of the three parties
would have a distinct role
to play. According to clause 1 of the tripartite agreement the purpose of ISS
was
to develop and promote isiZulu language in all spheres
of life, by preserving and recording the language. ISS is established to
undertake the recording of the language by compiling a user-friendly,
comprehensive monolingual dictionary and other lexicographic
products.
[6]
Unizuls
obligations were set out in clause 2. They included that Unizul had to make
office space available for ISS on its Umlazi
Satellite Campus in accordance
with the reasonable needs of ISS. In order to ensure the efficient operation
of ISS, Unizul also
undertook to provide necessary services and facilities,
including keys, a power supply, a cleaning service in respect of offices
used
by ISS and ablution facilities.
[7]
Unizuls
obligations provided for in clauses 2.4-6 are important in this matter. They
read as follows:
2.4 Unizul
undertakes to retain the existing three staffing positions in the Unit for the
period from the date of this agreement
until 31 December 2005 by
which date ISS expressly hereby agrees to take over the staffing positions and
the staff as
their own employees. However, it is expressly agreed that should
ISS be in a position to take over the staff at an earlier date
than 31 December 2005
then they shall do so.
2.5 Unizul
undertakes, in respect of remuneration and benefits of staff to be appointed by
the Board of Directors of ISS,
to channel their monthly salaries to them from
the funds made available by PanSALB.
2.6 Unizul
undertakes to allow staff members appointed by the Board of Directors to join
the pension scheme and medical aid
scheme which the Unizul members of staff
subscribe to, provided
(a) they elect to do
so; and
(b) the regulations of
the Fund concerned permit this.
(Emphasis added.)
[8]
PanSALBs
obligations were limited. Clause 3 set them out as being that, from monies
made available to it by Parliament through
the Department of Arts, Culture,
Science and Technology (Department), PanSALB would make available funding
(a) to ISS to enable it to cover day-to-day running
costs of ISS;
(b) to Unizul to cover remuneration and benefits of
staff employed by ISS; and
(c) to
Unizul, which shall be the amount equal to five percent (5%) of the subsidy
payable to ISS by PanSALB as from 1 January
2006 or at such earlier date in
terms of Clause 2.4 to cover the administrative costs of Unizul. (Emphasis
added.)
It is important to note that in terms of
clause 3 there were funds that PanSALB undertook to pay to ISS and Unizul.
Payment to
ISS was for its day-to-day running costs. Payment to Unizul fell
into two categories, namely, to cover remuneration and benefits
of staff
working at ISS and 5% of the subsidy payable to ISS by PanSALB from 1 January
2006 or at an earlier date in terms of clause
2.4 to cover the administrative
costs of Unizul.
[9]
ISSs
obligations were set out in clause 4 but they are of no moment for the purposes
of this matter. According to Unizul, from
the time of the conclusion of the
tripartite agreement it seconded the applicant to ISS as its Chief Executive
Officer (CEO) but
he remained its employee. It also seconded to ISS two other
members of its staff who had been working in the Zulu Dictionary Project.
This
means that, although the applicant was not an employee of ISS but was an
employee of Unizul, through secondment to ISS he
occupied the position of CEO
of ISS and performed the duties attached to that position. Although the
applicant denied having been
seconded to ISS, a secondment would explain how
during that period he could occupy the position of CEO of ISS while he remained
an employee of Unizul.
[10]
It
appears that during the period from the conclusion of the tripartite agreement
to early in 2005 the parties to the tripartite
agreement all honoured their
obligations without any problem. In the case of PanSALB, its obligation
entailed providing funds
for both the operations of ISS and for the salaries
and benefits of ISS personnel. It provided certain funds directly to ISS and
other funds through Unizul. However, in June 2005 PanSALB withheld the
payment of the funds that it had undertaken to provide
to Unizul and ISS in
terms of the tripartite agreement. It did so because it had not received ISSs
audited financial statements
for 2004-2005. Unizul provided funds to ISS from
its own funds during the period when PanSALB was not prepared to provide
funding.
[11]
PanSALBs
decision to suspend the performance of its obligation to provide funding to ISS
took effect six months before 31 December
2005 when, according to clause 2.4 of
the tripartite agreement, ISS was going to take the three staffing positions
and the three
Unizul staff members over as its employees if it had not taken
them over earlier. By the time of the suspension of payments by
PanSALB, ISS
had not yet taken over the three staffing positions and the three Unizul staff
members. Unizul continued to make
payments to ISS until June 2008 when it
stopped. It says that it made these payments from its own funds in the hope
that
PanSALB would reimburse it in due course because it regarded ISS as its
own project.
[12]
There
is no suggestion that anything of any significance occurred between June and 31
December 2005 except that PanSALB continued
to withhold the payment of funds to
Unizul and ISS. There is also no suggestion that any of the role players,
particularly Unizul,
the ISS Board of Directors (ISS Board) and the applicant
positively did anything on 31 December 2005 in connection with the takeover
contemplated by clause 2.4.
[13]
Nothing
of any particular significance also occurred in 2006 but PanSALB continued to
withhold payment. On 26 April 2007 a meeting
was held between
Mr GS Maphisa, the Chairperson of the ISS Board (and Registrar of
Unizul) and Mr SSE Sambo,
then Acting Deputy CEO of PanSALB, to discuss
the operations of ISS. On 2 May 2007 Mr Sambo sent a letter to Mr Maphisa in
which
he recorded what they had discussed. Mr Maphisa confirmed in a letter
dated 17 May 2007 that the contents of Mr Sambos letter
were a correct
reflection of the discussion between the two men.
[14]
In
his letter Mr Sambo had, inter alia, said that
(a) PanSALB
had suspended the payment of the said grant from June 2005 because due
to some unforeseen
circumstances PanSALB [had not received] the 2004-2005
audited financial statement from ISS;
(b) attempts
to resolve the impasse between ISS and PanSALB on the 2004‑2005 financial
statement had proven
futile until the meeting of 26 April 2007;
(c) PanSALB
undertook to resume making payments on condition that the [ISS Board] as well
as the Management of
[Unizul] are committed to rekindling the working relations
between all the parties . . . [t]his commitment will be followed by
negotiations to resuscitate the [tripartite agreement] . . . with the necessary
changes; and
(d) PanSALB
undertook to pay the grants outstanding since the suspension of the payments in
June 2005 on condition
that it was furnished with the audited financial
statements for the whole period of suspension.
[15]
Sometime
during 2007 PanSALB paid an amount of R1,6 million directly to ISS. When,
subsequently, Unizul learnt of this payment,
it demanded that ISS pay a certain
portion to it as a refund for monies that it had paid to ISS from the time when
PanSALB suspended
payment of funds to Unizul and ISS. Mr Maphisa supported
Unizul in its claim whereas the applicant maintained that the matter had
to be
deliberated upon and resolved by the ISS Board.
[16]
On
21 November 2007 Mr Maphisa wrote to Mrs NR Nkosi, the CEO of PanSALB, and
requested her to come and assist [Unizul], and
[ISS] to resolve [the]
financial issue in respect of the relationship between these parties.
[17]
On
8 February 2008 a meeting was held at Unizul involving PanSALB, Unizul and
ISS. ISS was represented by its Board and the applicant.
Unizul attached to
its answering affidavit a document purporting to be minutes of that meeting.
These
reflect the following under item 3.1.1(a) to (d):
3.1 Revision
of the [Tripartite Agreement]
3.1.1 The Meeting agreed that the
[tripartite agreement] be revised, the following recommendations were made:
(a) that clause 1 (one) on the purpose
of ISS to be modified to include all aspects of language;
(b) that clause 2 (two) be changed to
reflect the change of office ie Umlazi Campus of Unizul to Mangosuthu
University of
Technology;
(c) that clause 2.4 be rephrased to
accommodate the current position;
(d) that clause 5.2 be changed to read
Any movable assets acquired by ISS with funding provided by PanSALB remains
property
of PanSALB, and shall be registered as such on the inventories kept by
[Unizul]. (Emphasis added.)
[18]
Item
4 of the minutes dealt with the outstanding audited financial statements.
Under that item the minutes read as follows in part:
4. Outstanding
Audited Financial Statements
4.1. The Meeting noted:
(a) that
the audited financial statements of 2004/2005, 2005/2006 and 2006/2007 have not
as yet been submitted to PANSALB;
(b) that
PANSALB have at some point withheld the provision of funds to the ISS;
(c) that
PANSALB has since released the funds to the ISS (R1,6 million) and that the
release was retrospective with regard
to years previously not paid;
(d) that
the 2004-2005 audited statements are ready for submission;
(e) (i) that
31 March 2008 is the cut off date for the three years indicated above;
(ii) that
this matter is very serious and should not be looked at in a lenient way as the
non submission of audited financial
statements is a punishable offence;
(f) further
that [Unizul] has not been reimbursed in respect of moneys it has paid to ISS
in salaries and any other expenses
incurred during the period indicated above;
(g) that
the ISS is short of resources and would need some assistance from [Unizul];
(h) that
ISS should put their needs in writing and that [Unizul] would deal with it
internally.
[19]
Item
5 of the minutes reflected the following in part:
5. The Way Forward
5.1 The Meeting agreed to the
following:
(a) that PanSALB communicate with the
office of the Chairperson of the ISS Board (Registrar) with regard to the
amendment
to be effected to the [tripartite agreement];
(b) that the Audited Financial
Statements be submitted to the offices of PanSALB not later than 31 March 2008;
(c) that the issue of reimbursing
[Unizul] be dealt with by the
Chairperson of the ISS;
(d) that [Unizul] will deal with the
issue of making resources available to the ISS once the request has been
received.
[20]
Subsequent
to the meeting Mr Maphisa sent the applicant a letter dated 11 February
2008 asking him to effect payment to Unizul
and to furnish PanSALB with the
outstanding financial statements. He said that these were decisions that had
been taken at the
meeting of 8 February 2008.
It appears that, after
Mr Maphisas letter of 11 February 2008 to the applicant, the applicant
tried to arrange a meeting of
the ISS Board, probably to discuss the matter.
On 14 February 2008 Mr Maphisa wrote to members of the ISS Board and told them
that he had not sanctioned the meeting that the applicant was trying to
convene. He then wrote: If [the applicant] insists on
this meeting as well as
resist to reimburse [Unizul], I will have no option but to recommend the
dissolution of the Board to PanSALB
and the freezing of ISS funds pending the
resolution of the impasse.
[21]
In
a letter dated 19 March 2008 to Mr Maphisa the applicant disputed the assertion
that the meeting of 8 February 2008 had made
a decision that ISS should pay any
amount to Unizul. He said that in any event the ISS Board should hold a
meeting to discuss
the matter and reach finality. The applicant pointed out
that he had previously tried to convene a meeting of the ISS Board but
Mr
Maphisa had written him a strongly worded letter opposing the convening of that
meeting.
He wrote:
As far as I can remember Chairperson, the Board of the
ISS has never met and deliberated on this matter and I am still pleading
to you
to convene a meeting of the Board of the ISS as a matter of urgency so that
this matter can be dealt with and finalised
by the correct forum. You will
recall Chairperson, that I have made some attempts to convene a meeting of the
Board of the ISS
in order for us to finalise this matter. My attempt
Chairperson, resulted in receiving a strongly worded letter from you dated
14 February 2008
barring me from convening such a meeting. I will therefore, Chairperson, await
for you to convene such
an urgent meeting. (Emphasis added.)
[22]
As
to the financial statements for the 2004-2005 financial year the applicant said
that those statements had previously been furnished
to PanSALB but he would
furnish them again. Subsequently, Mr Maphisa sent the applicant another letter
insisting that ISS pay
the money to Unizul and furnish PanSALB with the
financial statements. Mr Maphisa, inter alia, wrote:
I find it illogical for you to expect [Unizul]
to continue paying your salary and be prevented from accessing funds from
PanSALB.
I find it equally unacceptable for you to refuse to furnish PanSALB
with the required financials. It was a legally/fully constituted
board that
met [Unizul] Management as well as PanSALB on 8 February 2008.
[23]
Mr
Maphisa pointed out to the applicant that the latters failure to comply with
his request was an act of insolence and urged him
to comply. He pointed out
that the activities of ISS could not continue as before if the issue of the
reimbursement of Unizul
was not resolved.
Mr Maphisa wanted the
payment of the amount to Unizul to be made immediately whereas the applicant
wanted Mr Maphisa to convene
a meeting of the ISS Board to discuss the
matter first which Mr Maphisa was not keen on doing. The applicant did not
carry
out Mr Maphisas instruction. Mr Maphisa did not convene a meeting
of the ISS Board.
[24]
Professor
RV Gumbi, the Rector and Vice-Chancellor of Unizul, wrote a letter dated
29 May 2008 to the CEO of PanSALB. In that
letter Prof Gumbi referred
to the meeting of 8 February 2008 and, among other things, pointed out that:
Despite repeated attempts through the Chair of the
Board, Mr Maphisa, [Unizul] has not been reimbursed the outstanding amount.
It
would appear that the Editor-in-Chief, [the applicant] is resisting the
settlement of the debt. We appeal to you to instruct
the Board to immediately
settle the debt. [Unizul] will be terminating payments to members of staff
employed in the ISS Project
if payment is not received by 12 June 2008.
[25]
No
payment had been made by ISS to Unizul by 12 June 2008. Unizul then stopped
all payments to ISS as Mr Maphisa had indicated.
This meant that the applicant
and the other two staff members were not paid their salaries and benefits.
Labour Court
[26]
The
applicant instituted an application in the Labour Court to compel Unizul to pay
his remuneration.
[27]
He
averred that he was employed by Unizul. In support of this he put up his
letter of appointment of 1984 as well as the payslips
for August 2007 to May
2008 which reflected Unizul as his employer. Unizul opposed the application.
It denied that the applicant
was its employee in June 2008 but admitted that he
had been employed by it from 1984 to 31 December 2005. Unizul contended that
the applicant was seconded to ISS in September 2002 pursuant to the tripartite
agreement and that his employment was taken over
by ISS after
December 2005 pursuant to clause 2.4 of the tripartite agreement.
[28]
In
his reply the applicant pointed out that he had not been party to the
tripartite agreement, although he had signed as a witness
on behalf of ISS. He
said that clause 2.4 had not been implemented because PanSALB had stopped
making the payments it was required
to make in terms of the tripartite
agreement. He pointed out that for him or any of the other staff members to be
taken over by
ISS an agreement with them would have been required and he had
not agreed to be taken over by ISS as its employee.
[29]
Unizul
pointed out in its answering affidavit that the applicant and two other Unizul
staff members were seconded to ISS at the
time of the conclusion of the tripartite
agreement and that [a]fter December 2005 in terms of clause 2.4 of the
agreement ISS
took over the employment of the three seconded staff members.
Unizul pointed out further that [i]n terms of clause 2.5 of the
agreement the
remuneration and employment benefits of the applicant and the other two staff
members were to be funded by PanSALB
who was obliged to pay the Unizul and
Unizul would act as a conduit pipe channelling their monthly salaries to them.
[30]
The
answering affidavit continues:
The reason for this arrangement was to make use of [Unizuls]
administrative infrastructure which ISS did not have. In order to
fulfil its
administrative duties and to act
as a conduit pipe as
aforementioned the salary of the applicant was reflected
through
[Unizuls] books.
In the next paragraph Mr Govindsamy, who
deposed to the answering affidavit, states that the payslips attached by the
applicant
to his affidavit simply record an administrative obligation undertaken
by the [Unizul] in terms of the agreement and did not in
any way whatsoever
change the employment regime created by the provisions of clause 2.4 of the
agreement.
[31]
Unizul
pointed out in the answering affidavit that the applicant is fully aware of
the contractual state of affairs between [Unizul],
ISS and PanSALB and in this
regard attention is drawn to the fact that he signed the agreement as a witness
on behalf of ISS.
[32]
Unizul
also stated that [t]he applicant furthermore with the formation of ISS . . . was
appointed as its [CEO], a position he currently
still holds. Unizul also
states that the applicant has the title of being ISSs Editor-in-Chief. It
said that it had no supervisory
power or control rights over the applicant who
runs the affairs of ISS and reports to its [Board]. It said that the
applicant
also did not form part of its establishment and his entitlement to
receive remuneration is solely dependent upon the continuation
of his
employment by ISS as its CEO or Editor-in-Chief.
[33]
According
to Unizul, its involvement in the affairs of ISS arose purely out of its
obligations that exist in terms of the tripartite
agreement. It said that its
involvement entailed providing limited administrative support and acting as a
conduit pipe in paying
certain staff salaries and benefits out of the funds
that PanSALB was obliged to channel through itself. Unizul said that during
the time when it had the Umlazi Campus, it used to provide office space to
ISS. After the closure of its Umlazi Campus, ISS was
accommodated by the Mangosuthu
University of Technology.
[34]
Unizul
submits that, given the contents of Annexures R1 to R11,
[5]
the applicant is fully aware of the relationship that exists between [Unizul],
ISS and PanSALB and consequently his relationship
with ISS. It says that,
[i]n making the allegations that he does relating to being employed by [Unizul]
and that it has failed
to pay his salary since [June 2008] he is disingenuous
in the extreme. Unizul also stated that, by virtue of PanSALBs breach
of the
tripartite agreement, it was entitled to decline to continue making payment to
ISS.
[35]
From
the affidavits it is clear that, on the applicants case, as at June 2008 he
was both an employee of Unizul and CEO of ISS
as he had been before 31 December
2005 and had not been taken over by ISS as its employee. According to Unizul,
while it is true
that, between September 2002 and 31 December 2005, the
applicant was both an employee of Unizul and CEO of ISS, he was taken over
by
ISS as an employee after 31 December 2005 and his contract of employment
with Unizul had thus come to an end. Unizuls
case is that, while the
applicant continued as CEO of ISS after 31 December 2005, he was no
longer an employee of Unizul
but an employee of ISS. The Labour Court was then
called upon to determine whether the applicant was still an employee of Unizul
in June 2008 although he was CEO of ISS or was an employee of ISS.
Judgment of the Labour Court
[36]
The
Labour Court gave an ex tempore judgment
[6]
to the
effect that the applicant ceased to be an employee of Unizul on 31 December
2005 and became an employee of ISS with effect
from 1 January 2006. It seems
that the factors which that court found to support those two conclusions were
that
(a) the
applicant was the CEO of ISS; the court said nothing about the fact that, on
Unizuls own case, the applicant
was the CEO of ISS during the period of
September 2002 to December 2005 when he was an employee of Unizul; and
(b) as
CEO of ISS the applicant was accountable to the ISS Board.
[37]
The
Labour Court dismissed the application with costs. After the dismissal, the
applicant made an application to the Labour Court
for leave to appeal to the
Labour Appeal Court. The Labour Court dismissed the application but the Labour
Appeal Court subsequently
granted leave to appeal.
Labour Appeal Court
[38]
After
setting out the facts and dealing with certain features of the tripartite
agreement, the Labour Appeal Court said
(a) [S]ection
77(3) on which the appellant relies as his launch pad for his claim is clearly
premised on an employment
relationship subsisting between the parties;
(b) For
the applicant to have succeeded in the Labour Court he had to satisfy the test
whether an employer-employee
relationship subsisted between him and [Unizul],
in other words whether there was a contract of employment between him and [Unizul]
at the time when [Unizul] stopped paying his salary. Put differently, the
[applicant] had to show that, at all material times
beyond 31 December 2005, he
remained under the control and direction of [Unizul] in the performance of his
duties and functions;
and
(c) The
applicant had to put up a case that showed that in performing his functions
regarding the Zulu Dictionary
Unit, he remained under the control of [Unizuls]
management and the latter retained the prerogative and right to discipline him
at all times as an employee. (Emphasis added.)
[39]
In
the end the Labour Appeal Court concluded that the applicants employment with
Unizul had ceased in December 2005 and, thereafter,
he had become an employee
of ISS. It said that the Zulu Dictionary Unit was severed and parcelled out
to ISS and the applicant
effectively assumed the responsibility of managing
and directing that project as a business unit. The Labour Appeal Court also
pointed out that the applicant had conducted himself as the CEO of ISS and was
in such role not subject to the management and
control of [Unizul]. Later on
the Labour Appeal Court said: Clearly the [applicant] cannot be the [CEO] of
ISS and still regard
himself at the same time as an employee of [Unizul]. His
claim was in my view correctly dismissed by the Labour Court.
[40]
Towards
the end of its judgment the Labour Appeal Court said that it was not necessary
to deal with the issue whether there was
a transfer of a business in terms of
section 197
[7]
of the
Labour Relations Act
[8]
(LRA) as
this was not an issue before it but it did so, nevertheless, as this had been
touched upon in argument before it. It
then went on to say:
This was therefore a classic case of the transfer of a
business as a going concern as contemplated by section 197 of the [LRA].
The
transaction encompassed in the tripartite agreement has all the hallmarks of a
transfer of a business as enunciated in NEHAWU
and Others v University of Cape
Town ie that the transaction must constitute a transfer, that a business
was transferred.
. . as a going concern. In this matter [Unizul]
transferred the Zulu Dictionary Project to ISS with the [applicant] and two
other employees and that the business unit transferred is clearly a going
concern. (Footnotes omitted.)
[41]
The
Labour Appeal Court said that it had no hesitation in finding that the picture
one sees in the business of ISS consists of
the same components of the Zulu
Dictionary Project as it was under [Unizul]. It said that the facts showed
that the business
after the transfer was substantially the same but in
different hands. It, therefore, dismissed the appeal with costs.
In this Court
Jurisdiction
[42]
The
first question is whether or not this Court has jurisdiction to entertain this
matter. Until 23 August 2013 this Courts jurisdiction
was limited to
constitutional matters or issues connected with constitutional matters. With
effect from that date this Court acquired
general jurisdiction. This matter
was argued before this Court after that date. Counsel for both parties were
content to have
the matter dealt with under the old jurisdiction. Accordingly,
I propose to determine whether this Court has jurisdiction on the
basis of the
position as it was before 23 August 2013. Under that jurisdiction,
section 167(3)(b) of the Constitution
conferred jurisdiction on this
Court to decide only constitutional matters and issues connected with
decisions on constitutional
matters. In my view, for reasons that appear
below, this matter does raise constitutional issues.
[43]
Section
23(1) of the Constitution reads: Everyone has the right to fair labour
practices. Certain provisions of the Basic Conditions
of Employment Act
[9]
(BCEA) are relevant to the applicants case even though he might not have
referred to them in his affidavits. They are the definitions
of the terms
basic conditions of employment and employee and sections 2, 4, 32(1)(b) and
32(3)(a). Section 2 provides that
the purpose of the BCEA is
to advance economic development and social justice by
fulfilling the primary objects of this Act which are
(a) to
give effect to and regulate the right to fair labour practices conferred by
section 23(1) of the Constitution
(i) by establishing
and enforcing basic conditions of employment; and
(ii) by regulating
the variation of basic conditions of employment;
(b) to
give effect to obligations incurred by the Republic as a member state of the
International Labour Organisation. (Emphasis
added.)
[44]
Section
1 defines a basic condition of employment as meaning a provision of this Act
or sectoral determination that stipulates
a minimum term or condition of
employment. Section 1 defines an employee as
(a) any
person, excluding an independent contractor, who works for another person or
for the State and receives, or is entitled
to receive, any remuneration; and
(b) any
other person who in any manner assists in carrying on or conducting the
business of an employer, and employed and
employment have a corresponding
meaning.
Section
4 provides:
A basic condition of employment constitutes a term of
any contract of employment except to the extent that
(a) any other law provides a term that is more
favourable to the employee;
(b) the
basic condition of employment has been replaced, varied or excluded in accordance
with the provisions of this Act;
or
(c) a
term of the contract of employment is more favourable to the employee than the
basic condition of employment.
Section 32(1)(b) reads:
An
employer must pay to an employee any remuneration that is paid in money daily,
weekly, fortnightly or monthly.
Section 32(3)(a) reads: An
employer must pay remuneration not later than seven days after the completion
of the period for which
the remuneration is payable. The provisions of
section 32(1)(b) and (3)(a) are basic conditions of employment within the
definition of the term basic condition of employment in section 1 of the
BCEA.
[45]
The
applicants averment that he was an employee of Unizul was essential for two
reasons. The one is that the jurisdiction of the
Labour Court under section 77
of the BCEA is limited to claims between an employee and an employer. The
other is that he could
not succeed in his claim for the payment of his remuneration
by Unizul if he was not its employee.
[46]
Section
4 of the BCEA is of critical importance in the present case. It makes every
provision of the BCEA that is a basic condition
of employment as defined in
section 1 a term of any contract of employment to which the BCEA applies except
in any one of the three
cases specified therein which do not apply to the
present case.
[47]
Section
32(1), inter alia, places an obligation on an employer to pay an employee his
or her remuneration daily, weekly, fortnightly
or monthly, as the case may be.
In the present case the applicant was paid monthly. Section 32(3)(a) places an
obligation upon
an employer to pay an employee his or her remuneration within
seven days after the completion of the period for which the remuneration
is
payable. In the present case it is common cause that Unizul did not pay the
applicant his remuneration within the period prescribed
by section 32(3)(a)
with regard to June 2008 and every month thereafter. This means that, if
Unizul was the applicants employer
as at June 2008, it acted in breach of
its obligation in section 32. This would mean that Unizul acted in breach of
legislation
enacted to give effect to section 23 of the Constitution.
[48]
In
NEHAWU v UCT
[10]
this
Court had this to say about the interpretation and application of legislation
enacted to give effect to and regulate the fundamental
right conferred by
section 23:
The LRA was enacted to give effect to and regulate the
fundamental rights conferred by [section 23] of the Constitution. In doing
so
the LRA gives content to section 23 of the Constitution and must therefore be
construed and applied consistently with that purpose.
Section 3(b) of the LRA
underscores this by requiring that the provisions of the LRA must be
interpreted in compliance with the
Constitution. Therefore the proper
interpretation and application of the LRA will raise a constitutional issue. This
is because
the Legislature is under an obligation to respect, protect, promote
and fulfil the rights in the Bill of Rights. In many cases,
constitutional
rights can be honoured effectively only if legislation is enacted. Such
legislation will of course always be subject
to constitutional scrutiny to
ensure that it is not inconsistent with the Constitution. Where the Legislature
enacts legislation
in the effort to meet its constitutional obligations, and
does so within constitutional limits, courts must give full effect to
the
legislative purpose. Moreover, the proper interpretation of such legislation
will ensure the protection, promotion and fulfilment
of constitutional rights
and as such will be a constitutional matter. In this way, the courts and the Legislature
act in partnership
to give life to constitutional rights.
[11]
(Emphasis added.)
[49]
As
can be seen from the purpose of the BCEA, it is legislation that was enacted to
give effect to the Constitution, in particular
to the right to fair labour
practices conferred by section 23 of the Constitution. The BCEA governs the
most basic terms and conditions
that every employee is entitled to enjoy.
[50]
Section
32(1) and (3) are the only provisions in legislation enacted to give effect to
the right to fair labour practices which
an employee whose right to fair labour
practices has been infringed by way of a non-payment of his or her remuneration
may use
to enforce the right to fair labour practices. The LRA has no such
provision. In his affidavit filed in support of his application
for leave to
appeal to this Court the applicant, inter alia, pointed out that his
application concerns an infringement of his right
as an employee to human
dignity in terms of section 10 of the Constitution
[12]
and his right to fair labour practices in terms of section 23 of the
Constitution.
[51]
One
of the most obvious unfair labour practices would be the refusal of an employer
to pay an employee his or her remuneration after
the employee has performed his
or her work or when payment is due. Furthermore, in order to enjoy the
benefits of the right to
fair labour practices in section 23, one must be an
employee or an employer. A determination that a person is not an employee
excludes such a person from the category of those who have the right to fair
labour practices conferred by section 23.
[52]
The
applicants claim for his remuneration has a statutory basis because
section 4 of the BCEA renders the provisions of section
32(1) and (3) a
term of his contract of employment. Accordingly, in the light of sections 4
and 32(1) and (3) the basis of the
applicants claim for remuneration is not
only contractual but also statutory. Since the statute is one that was enacted
to give
effect to section 23, its application is a constitutional issue.
[13]
On the approach adopted by my Colleague Jafta J in his concurrence, in seeking
to determine whether this Court has jurisdiction
the averment made by the
applicant that he was employed by Unizul must be assumed to be correct.
[14]
[53]
One
can also view the constitutional issue within the context of the jurisdiction
of the Labour Court. The denial by Unizul that
the applicant was its employee
raised the question whether the Labour Court had jurisdiction to entertain the
applicants matter
because the absence of an employment relationship between
the applicant and Unizul would have meant that the Labour Court had no
jurisdiction to entertain his claim.
[54]
In
Senwes Ltd v Competition Commission of South Africa
[15]
the Supreme Court of Appeal found that the Competition Tribunal (Tribunal) had
exceeded its powers and thus contravened the principle
of legality.
[16]
In considering whether the Competition Commission should be granted leave to
appeal to this Court against the judgment and order
of the Supreme Court of
Appeal, this Court said:
[17]
There can be no doubt that this matter raises a
constitutional issue. As is apparent from the above, the Supreme Court of
Appeals
order is based on the finding that the Tribunal, in adjudicating the
margin squeeze abuse, had exceeded its statutory powers and
thereby violated
the principle of legality which forms part of the rule of law. The question
whether the Tribunal had exceeded
its statutory power in entertaining the
margin squeeze abuse concerns one of the most important principles in the
control of public
power in our constitutional order, the principle of
legality.
[18]
(Footnote omitted.)
[55]
Senwes
was followed in Yara
[19]
and
Loungefoam.
[20]
Although these cases relate to an administrative body and not to a court, I am
of the view that the obligation on administrative
bodies to perform only those
functions or exercise those powers conferred upon them by law applies with
equal, if not more, force
to courts. Whether or not, in adjudicating the
applicants claim, the Labour Court would have exceeded its jurisdiction goes
to
the principle of legality. If the applicant was an employee of Unizul, the
Labour Court would not have exceeded its jurisdiction
in entertaining the
applicants claim. If he was not, the Labour Court would have exceeded its
jurisdiction if it entertained
his claim. Accordingly, the constitutional
issue arising out of the need to determine whether the applicant was an
employee of
Unizul in June 2008 can also be viewed from the perspective of
jurisdiction and, therefore, legality.
[56]
Furthermore,
a finding that a person is not anothers employee is a finding that excludes
him or her from the category of persons
who may enjoy the right to fair labour
practices conferred by section 23 of the Constitution. A decision that
includes or excludes
a person from the category of persons who enjoy a
particular right entrenched in the Bill of Rights is a constitutional matter.
[57]
When
section 23(1) of the Constitution says that [e]veryone has the right to fair
labour practices, it refers to an employee and
an employer. A person who is
neither an employer nor an employee has no right to fair labour practices as
envisaged in section 23(1).
In NEHAWU v UCT this Court said that the
focus of section 23(1) is, broadly speaking, the relationship between the
worker
and the employer and the continuation of that relationship on terms that
are fair to both.
[21]
An
issue about whether a person is an employee is an issue about whether or not he
or she falls within the ambit of the word everyone
in section 23(1). Of
course, this does mean that such a person may rely directly on section 23. He
would have to rely, in a case
such as the present, on the definition of employee
in section 1 of the BCEA. A determination that he or she is an employee
confers
upon that person a legal status that enables him or her right to claim
the right to fair labour practices in section 23(1).
A determination that
he or she is not an employee denies him or her that status and excludes him or
her from the category of persons
who have the right to fair labour practices.
[58]
An
approach to the effect that such an issue is neither a constitutional matter
nor an issue connected with a decision on a constitutional
matter would mean
that courts other than this Court have the final say on which categories of
people enjoy certain rights entrenched
in the Bill of Rights and that this
Court has no say on such an important issue despite the provisions of section
167(3)(b) of
the Constitution. I am unable to agree with such an approach.
This Court had in mind legislation such as the LRA and the BCEA
when it said in
the First Certification Case:
[22]
The effect of [section 23 of the Constitution] will be
that the right of employers to use economic sanctions against workers will
be
regulated by legislation within a constitutional framework. The primary
development of this law will, in all probability, take
place in labour courts
in the light of labour legislation. That legislation will always be subject to
constitutional scrutiny
to ensure that the rights of workers and employers as
entrenched in [section 23] are honoured.
[23]
(Footnote omitted and emphasis added.)
In NEHAWU
v UCT this Court took this theme further and said:
Although these remarks were made in the context of
collective bargaining, they apply no less to section 23(1). This Court also
has an important supervisory role to ensure that legislation giving effect to
constitutional rights is properly interpreted and
applied.
[24]
(Emphasis added.)
[59]
I
have read the judgment by my Colleague, Cameron J (majority judgment). The
majority judgment contends that the question whether
the applicant was employed
by Unizul in June 2008 is purely factual and, therefore, it does not raise any
constitutional issue
which means that this Court has no jurisdiction to
entertain the matter. In my view the question whether a person is an employee
of
another is not a purely factual issue. It is an issue that is made up of facts
and opinion. It is a value judgment. In determining
that question the Court
does not look at a single issue but looks at many factors and makes a value
judgment on whether the person
is or is not an employee. However, even if that
question was a factual issue, in the present case it is an issue connected
with
a decision on a constitutional matter within the contemplation of section
167(3)(b) of the Constitution.
[60]
The
current thinking of this Court on when it can be said that there is a
constitutional issue in a matter is reflected in Grootboom
[25]
which was handed down on 21 October 2013. The issue in that case related to
section 17(5)(a)(i) of the Public Service Act
[26]
(PSA).
Section 17(5)(a)(i) provided as follows:
An officer . . . who absents himself or herself from his
or her official duties without permission of his or her head of department,
office or institution for a period exceeding one calendar month, shall be
deemed to have been discharged from the public service
on account of misconduct
with effect from the date immediately succeeding his or her last day of
attendance at his or her place
of duty.
[27]
[61]
The
applicant, Mr Grootboom, had been employed by the National Prosecuting
Authority (NPA) as a public prosecutor. Mr Grootboom
was suspended from duty.
During his suspension he got a scholarship to further his studies in the United
Kingdom. He sought permission
from the NPA to go to the UK and further his
studies and asked that his leave be with full pay. The NPA was prepared to
grant
him leave but not with pay. He left for the UK without the issue of pay
being finalised. While he was in the UK his suspension
continued. The NPA
invoked section 17(5)(a)(i) against Mr Grootboom while he was on
suspension. It said that he was deemed
to have been discharged from the public
service in terms of section 17(5)(a)(i) on the basis that he had absented
himself from
his official duties without permission for over a period of one
calendar month.
[28]
[62]
Before
this Court the sole question was whether or not Mr Grootboom had absented
himself from his official duties for more
than a calendar month without
permission. If he had, then in terms of section 17(5)(a)(i) he was deemed to
have been discharged
from the public service and his appeal would have had to
be dismissed. If he had not, he was not deemed to have been discharged
from
the public service and his appeal would have had to be upheld.
[63]
In
his judgment, my Colleague, Madlanga J, suggests that in Grootboom the appeal
did not depend purely upon a factual issue. With
respect, the suggestion is
contradicted by a finding that this Court made that was dispositive of the
appeal. The Court said:
It
is so that the applicant was absent from his employment. He was absent because
he was suspended. This means that he was absent
with the permission of his
employer. Therefore, one of the essential requirements of section 17(5)(a)(i)
has not been met.
[29]
This finding is purely factual. It meant that Mr
Grootbooms appeal had to be upheld. Once this factual finding was made, the
consequence was that section 17(5)(a)(i) did not apply to the case.
[64]
To
the extent that the majority judgment and Madlanga Js judgment say that the
question in the present case is purely factual and
should, therefore, not be
entertained by this Court, how much more factual can any issue be than the
question in Grootboom?
[65]
Mr
Grootboom did not assert any constitutional right in his affidavit in the
Labour Court. He asserted some constitutional rights
in his affidavit filed in
support of his application for leave to appeal to this Court. However, only
one of those constitutional
rights was relied upon by this Court to support its
conclusion that there was a constitutional issue in that case. That was the
right
to fair labour practices conferred by section 23 of the Constitution.
[66]
In
Grootboom the question whether or not the matter raised a constitutional issue,
thus giving this Court jurisdiction, was dealt
with very briefly. This Court
said:
This matter revolves around the correct interpretation
and application of section 17(5)(a)(i) of the Act. Section 39(2) of
the
Constitution requires legislation to be interpreted to promote the spirit,
purport and objects of the Bill of Rights. This
Court has held that a
constitutional issue is raised where the interpretation of legislation may
impact on a fundamental right
of a litigant under the Bill of Rights. Section
17(5)(a)(i) effectively countenances the dismissal of a state employee without
a hearing. That implicates the right to fair labour practices enshrined in
section 23 of the Constitution. The constitutionality
of the section is not
attacked; hence it must be interpreted in a manner best compatible with the
Constitution. A constitutional
issue is thus at stake here.
[30]
(Footnotes omitted.)
[67]
Whether
or not Mr Grootboom had been given a hearing before section 17(5) was
invoked or before he could be deemed to have
been discharged from the public
service was not one of the issues in the matter. In his affidavit Mr Grootboom
also did not refer
to section 39(2) of the Constitution upon which this Court
relied in its judgment to conclude that there was a constitutional issue
in
that matter.
[68]
In
the present case I accept that in his oral argument counsel for the applicant
confined his argument to the contention that the
constitutional issue raised by
this matter is a violation of the applicants right to human dignity. In
support of this, counsel
submitted that the transfer of the applicants
employment from Unizul to ISS upon which Unizul relied would have occurred
without
the applicants consent which meant that he would have been transferred
like a chattel. However, that was not the only constitutional
issue raised in
the applicants affidavit filed in support of his application for leave to
appeal to this Court. He had also raised
the issue of his right to fair labour
practices entrenched in section 23. Counsel for the applicant did not abandon
the other
constitutional issues raised in the applicants affidavit in this
Court. Whether there is a constitutional issue in a matter is
a question that
goes to the jurisdiction of this Court. The jurisdiction of a court is
determined objectively on the material
before the court. In the present case
that is done on common-cause facts. There can be no prejudice to any party.
[69]
The
view of the majority judgment and Madlanga Js judgment that there is no
constitutional issue and that, therefore, this Court
has no jurisdiction, is
based in part on a failure to give effect to Grootboom. In my view, if one
agrees that there was a constitutional
issue in Grootboom, one would have difficulty
in justifying the view that there is no constitutional issue in the present
matter.
Leave to appeal
[70]
This
Court grants leave to appeal if it is in the interests of justice to do so. It
will have been seen from the above that the
determination of whether the
applicant was an employee of Unizul must be made within the context of the
feature of the secondment
of the applicant by Unizul, at some stage, to ISS.
This is so because, on Unizuls own case, from September 2002 to 31 December
2005 the applicant was an employee of Unizul but had been seconded to ISS as
its CEO and his employment by Unizul came to an end
when he was taken over by
ISS as its employee after December 2005. The applicant contends that he
never at any stage ceased
to be an employee of Unizul and never became an
employee of ISS even though he was the CEO of ISS. He further argues that he
was
never taken over by ISS as its employee in terms of clause 2.4 of the
tripartite agreement but he was allowed by Unizul to work
at ISS as its CEO
while remaining its employee.
[71]
Bearing
in mind what the secondment of an employee entails, if the applicant was not
taken over by ISS in terms of clause 2.4,
his employment contract with
Unizul did not come to an end. If, therefore, beyond 31 December 2005 he was
still an employee of
Unizul and he was still working as CEO of ISS with
Unizuls blessing, then he was still on secondment to ISS as its CEO while
remaining
an employee of Unizul as had been the case, even on Unizuls case,
before 31 December 2005.
[72]
The
Labour Appeal Court based its conclusion that the applicant was not an employee
of Unizul on the finding that the applicant
was not subject to the control,
supervision or direction of Unizul but to that of the ISS Board. The Labour
Appeal Court stated
that the applicant could not be the CEO of ISS and still
consider himself to be an employee of Unizul. In this regard the Labour
Appeal
Court overlooked the fact that, even on Unizuls own case, from September 2002
to 31 December 2005 the applicant was both
an employee of Unizul and CEO of
ISS. The thrust of the applicants case in all courts has been that the
position that obtained
prior to 31 December 2005, namely, when he was both
an employee of Unizul and CEO of ISS, never ceased and it was still the
position in June 2008 when Unizul stopped paying his remuneration. It is,
therefore, critical to understand the role and place
of the features of control
and supervision in the determination of an employment relationship where an
employee has been seconded
by his or her employer to another entity. A failure
to appreciate the role and place of these features in the determination of
the
identity of the employer may lead to an incorrect determination of whether a
person is or is not an employee of a particular
entity.
[73]
The
employment of many public servants is governed by statutes which provide for
their secondment from their departments to other
departments or other
institutions. These statutes include the PSA, the South African Police Service
Act
[31]
(SAPS
Act) and the Intelligence Services Act
[32]
(ISA).
The approach of the Labour Appeal Court, which in effect focuses on which entity
exercises control and supervision over
the person, may have far-reaching
implications where an employee performs duties within the entity to which he or
she has been
seconded.
[74]
On
the approach of the Labour Appeal Court an employee who has been seconded by
his or her employer to another entity may be declared
to be an employee of the
other entity and not of his or her true employer just because he or she may be
subject to the control
and supervision of that entity for the duration of the
secondment. The approach adopted by the Labour Appeal Court renders the
factors of the control over, direction and supervision of, a seconded employee
determinative of who the employer of the seconded
employee is. That Court
decided in the present case that the applicant was subject to the control or
direction of, and, supervision
by, ISS and that, because of that, ISS was the
applicants employer.
[75]
The
Court lost sight of the fact that, if the applicant was an employee of Unizul
but was allowed by Unizul and ISS to work at ISS
as the latters CEO while
remaining an employee of Unizul, as was the position, even on Unizuls case
between September 2002
and 31 December 2005, he would still have been an
employee of Unizul on secondment to ISS despite the fact that he was subject to
the control of, and, supervision by, ISS. The Court does not appear to have
appreciated this.
[76]
The
question which the Court was called upon to decide, in determining who the
applicants employer was in June 2008, was whether
the applicant was taken over
by ISS as its employee from Unizul by 31 December 2005. If he was taken over,
he then became an employee
of ISS. If he was not taken over, he remained an
employee of Unizul on secondment to ISS as its CEO. In the latter case the fact
that he may have been subject to the control and supervision of ISS would be no
indication or proof that he was not an employee
of Unizul but that of ISS. The
Labour Appeal Court did not focus on what the takeover contemplated in clause
2.4 of the tripartite
agreement would have entailed. It seemed to have
regarded that as of no importance as long as it was established who exercised
control over, and, supervision of, the applicant because, on its approach, that
would determine who the applicants employer was.
In my respectful view the
majority judgment falls into the same error as well.
[77]
This
Court has never had the opportunity to pronounce on the role and place of
control and supervision in the determination of the
identity of the employer in
a case involving an employee who has been seconded. In the light of the fact
that secondment is an
important feature of public service employment which
affects thousands of public servants, it is in the interests of justice that
this Court provide the required clarity.
[78]
In
Grootboom the question whether it was in the interests of justice to grant
leave to appeal was dealt with very briefly. It was
said:
Section 17(5) has the potential to affect people
employed in the public service. Its reach is extensive. It has the adverse
effect
of terminating employment for misconduct without notice or hearing, and
it is therefore important for this Court to determine the
proper scope of its
application. The appeal has prospects of success. It would thus be in the
interests of justice to grant leave
to appeal.
[33]
[79]
Against
the background of what weighed with this Court in granting leave to appeal in Grootboom
it can be said in the present case
that the question of what the role and place
of the control over, and, supervision of, a seconded employee when it is sought
to
determine who his or her employer is has the potential to affect many civil
servants because many of them fall under legislation
that makes provision for
their secondment to other government departments or institutions established by
law.
[80]
If
the position is that the applicant ceased to be an employee of Unizul on
31 December 2005 and became an employee of ISS,
he lost employment of more
than two decades with an established institution and became an employee of a
section-21 company with
no money and whose future depended on whether there
would be successful co-operation among the three parties to the tripartite
agreement. The matter is very important to the applicant. For the reasons
arising out of the presence of the feature of secondment
as discussed above, it
is also very important to many employees whose employment permits secondment.
With regard to the prospects
of success, for the reasons which appear later in
this judgment, I am of the view that the applicant has reasonable prospects of
success. It is in the interests of justice to grant leave to appeal.
The appeal
[81]
As
indicated earlier, the Labour Appeal Court found that there was a transfer of
business as a going concern in terms of section
197 of the LRA. The finding
should be set aside because, firstly, it was not part of Unizuls case in the
papers and, secondly,
no such transfer of business as a going concern
occurred. Although I say that it was not part of Unizuls case in the papers
that
there had been a section-197 transfer of business as a going concern in
this matter, in the Labour Appeal Court Unizul did advance
the contention that
there was a transfer of business as a going concern.
[82]
If
there were a transfer of business as a going concern, it must have occurred
upon the implementation of the tripartite agreement
which, in the view of the
Labour Appeal Court, provided for a transfer of business as a going concern in
terms of section 197.
There was no transfer of assets from Unizul to ISS.
There was no transfer of the workforce from Unizul to ISS at the time of the
implementation of the tripartite agreement in 2002. The agreement was a
partnership agreement in terms of which, instead of Unizul
running the Zulu
Dictionary Project by itself, it now had partners in the form of ISS and
PanSALB to co-operate with in the running
of the project. ISS could not run
anything on its own because it had no funds. PanSALB was to provide funding
from monies allocated
to it by the Department from funds allocated by
Parliament. Unizul had the obligation to provide ISS with accommodation.
[83]
The
Labour Appeal Courts finding that there was a transfer of business as a going
concern in terms of section 197 in this case
necessarily means that, when the
tripartite agreement was implemented in 2002, the applicants contract of
employment was automatically
transferred from Unizul to ISS. That would be in
conflict with the other finding of the Labour Appeal Court that the applicant
became an employee of ISS on 1 January 2006. If the Labour Appeal Courts
finding concerning section 197 is not set aside
and the decision of the Labour
Appeal Court remains intact after the judgment of this Court and the applicant
were to approach
Unizul to claim any monies that may have accrued to him before
but were not paid out to him, Unizul may well tell him that it is
not the right
party for him to approach in that regard because there was a section-197
transfer of business and he should look
to ISS for the payment of such monies.
Of course, ISS will not be able to pay him as it has no funds. The finding
that section
197 applied to the tripartite agreement and that there was a
transfer of business as a going concern in this matter falls to be
set aside.
[84]
In
considering this appeal, it is critical to remember what each partys case is.
The parties are agreed that between September
1984 and 31 December 2005 the
applicant was an employee of Unizul. They are also agreed that between
September 2002 and 31 December
2005 he was CEO of ISS while he
remained an employee of Unizul. They are also agreed that in June 2008 he was
still the CEO of
ISS but they are in dispute about who his employer was at that
time.
[85]
Unizul
contends that in June 2008 the applicant was no longer its employee but was an
employee of ISS because he had been taken
over by ISS as its employee after
December 2005 in terms of clause 2.4 of the tripartite agreement. The
applicant contends that
his contract of employment with Unizul did not come to
an end on 31 December 2005 because he was not taken over by ISS
as
its employee in terms of clause 2.4 and the position that had obtained before
31 December 2005 with regard to his relationship
with both Unizul and ISS,
respectively, continued to obtain beyond 31 December 2005 and was still
the position in June 2008.
This means that, on the applicants case, the applicant
was still an employee of Unizul in June 2008 but was on secondment to ISS
as
the latters CEO.
[86]
The
concept of the secondment of an employee from one entity to another is an
important feature of this matter. It is therefore
appropriate to understand what
secondment may entail. The Cambridge International Dictionary of English
assigns the following
meaning to the verb to second:
[T]o send an employee to work somewhere else
temporarily, either to increase the number of workers or to replace other workers,
or to exchange experience or skills: Eg During the dispute, many police officers
were seconded from traffic duty to the prison
service.
With
regard to the noun secondment, the same dictionary gives the following
example: His involvement with the project began when
he was on (a) secondment
from NASA to the European Space Agency.
[87]
Section
1 of the PSA contains, among others, the definition of the term employment
practice. The definition says that the term
employment practice includes,
among others, transfer and secondment. Although there is no definition of
the term secondment
in the PSA, sections 8A and 15 of that Act give an
indication of what secondment under that Act may entail. Section 8A bears the
heading Mechanisms for obtaining services of persons. It reads:
Services of persons may be obtained in terms of this Act
by means of
(a) appointments
in terms of section 9, including appointments of heads of department in terms
of section 12;
(b) appointments
in terms of section 12A on grounds of policy considerations; or
(c) deployments in the form of
(i) transfers
in terms of section 14, including transfers of heads of department in terms of
section 12(3);
(ii) secondments in
terms of section 15; and
(iii) assignments in
terms of section 32. (Emphasis added.)
From
section 8A(c) it is clear that under the PSA the secondment of an employee is a
form of deployment.
[88]
Section
15 of the PSA bears the heading Transfer and secondment of officials. It
reads as follows:
(1) A
person holding a pensionable appointment in a department under any law other
than this Act or in any institution or
body established by or under any law and
which obtains its funds directly in whole or in part from revenue, may be
transferred
to, and appointed in, a post in the A or B division.
(2) A
person in the service of a department under any law other than this Act, or in
the service of another government, or
of any council, institution or body
established by or under any law, or of any other body or person, may be
employed by another
department or a department, as the case may be, for a
particular service or for a stated period and on such terms and conditions,
other than conditions laid down by or under any pensions law, as may be agreed
upon by the employer of the person concerned and
the relevant executing
authority and approved by the Treasury.
(3) (a) An
officer or employee may with his or her consent and on such conditions, in
addition to those prescribed by
or under any law, as may be determined by the
relevant executing authority after consultation with the Treasury, be placed at
the
disposal of another government, or of any council, institution or body
established by or under any law, or of any other body or
person, for a
particular service or for a stated period.
(b) Such
an officer or employee remains subject to the laws applicable to officers and
employees in the public service while
so placed at such disposal.
(4) (a) A
person (in this paragraph referred to as the official) in the service of a
department under any law other
than this Act, or in the service of another
government, or of any council, institution or body established by or under any
law,
or of any other body or person, may be employed by another department or a
department, as the case may be, for a stated period and
on such terms and
conditions, other than conditions laid down by or under any pensions law, as
may be agreed upon by the employer
of the official and the relevant executing authority
and approved by the Treasury, and in such a case, on such conditions, in
addition
to those prescribed by or under any law, as may be determined by the
said authority after consultation with the Treasury, an officer
or employee may
with his or her consent and in terms of such an agreement be placed at the
disposal of the employer of the official
for the same period on an exchange
basis.
(b) Such
an officer or employee remains subject to the laws applicable to officers and
employees in the public service while
so placed at such disposal. (Emphasis
added.)
[89]
Section
15(1) of the PSA deals with the transfer of a person holding a pensionable
appointment in a department to a post in the
A or B division to which he or she
then gets appointed. Section 15(2) deals with the case where an employee of
one department
or government or institution gets seconded and also employed by
another government or department or institution by agreement with
the first‑mentioned
government or department or institution but for a specified period. In such a
case the employee will
hold two concurrent contracts of employment with the
consent of all concerned.
[90]
Another
form of secondment is to be found in section 15(3) where provision is made for
a person employed by one department or executing
authority to be placed at the
disposal of another government or council or institution or body for a
particular service or for
a stated period. I think that this is the usual
form of secondment. The secondment envisaged in section 15(3) seems to be the
same as the one with which we are dealing in the present case. Section 15(2)
is an example of a case where A is employed by B
but gets seconded to C who
employs him or her for a certain period while he or she (that is, A) remains an
employee of B as well.
Section 15(3) is an example of a case where A is
employed by B but gets seconded to C for a certain period without being
employed
by C and he or she performs duties for C while remaining an employee
of B.
[91]
The
Public Service Regulations, 2001,
[34]
which
were promulgated in terms of section 41 of the PSA, provide as follows in
regulation B.4
[35]
about
secondments:
Secondments
B.4.1 An
executing authority may, with the consent of the employee concerned, second the
employee to another department in the
public service for a particular service
or for a period of time.
B.4.2 The
recipient department shall bear the inclusive costs of secondment, unless both
departments agree otherwise.
B.4.3 If
an employee is seconded in terms of
section 15
(3) or (4)
of the [PSA], the recipient government, council, institution or body or person
shall bear the inclusive costs of the
secondment, unless the relevant
department, after consultation with the Treasury, and the recipient entity
agree otherwise.
B.4.4 If
an employee is seconded in terms of
section 15
(3) or (4)
of the [PSA], the relevant executing authority may, subject to the written
consent of the employee, bind her or him to
continued employment in the
relevant department or another department in the public service immediately
after the secondment, for
a period not exceeding the period of the secondment.
[92]
To
the extent that as a matter of fact and in terms of the tripartite agreement
the costs of the salary and benefits of the applicant
may have been borne by
ISS through the funds supplied by PanSALB and were not borne by Unizul, that is
in line with what would
happen in the public service in the case of a
secondment as provided for in regulation B.4. The department to which an
employee
is seconded normally bears the costs connected with the rendering of
service by that employee to that department during the secondment.
[93]
Section
19(2) of the ISA authorises the Minister of Intelligence, with the consent of
a member and upon such conditions as the
Minister may determine, to second a
member, for the performance of a particular service or for a specified period,
to the service
of any other department, or to any other authority, board,
entity, establishment, institution or body, but, while so seconded, the
member
remains subject to this Act and any other law which applies to him or her.
[94]
The
SAPS Act also contains a provision about secondment in the South African Police
Service. Section 39 of that Act reads:
(1)
The
services of a member may be placed at the disposal of any other department of
State or any authority established by or under
any law.
(2) If
a member is seconded under subsection (1), such member shall be deemed to be
serving in the Service and shall retain
all powers and privileges as a member,
subject to such conditions as may be agreed upon by the National Commissioner
and the department
of State or authority concerned.
(3) A
member seconded under subsection (1) shall, in the performance of his or her
functions, act in terms of the laws applicable
to the department of State or
authority to which he or she is seconded, subject to such conditions as may be
agreed upon by the
National Commissioner and the department of State or
authority concerned.
(4) The
National Commissioner shall determine uniform standards and procedures
regarding the secondment of members. (Emphasis
added.)
[95]
It
is clear that the secondment of employees is provided for in legislation
governing employment in the public service. It is also
important to appreciate
that Unizul, being an institution established by law as contemplated in section
15 of the PSA, is an institution
to which public servants may be seconded in
terms of section 15 of the PSA. Accordingly, it is likely that the
understanding of
secondment reflected in the PSA is also the understanding of
secondment shared by Unizul. It is, therefore, important that there
be a clear
understanding as to who exercises control and supervision over a seconded
employee. Is it the employer who has seconded
the employee to another entity
or is it the entity to whom the employee has been seconded?
[96]
In
my view it is the entity to whom the employee has been seconded which exercises
control over or supervision of the seconded employee
but that entity is able to
exercise such control or supervision only because the employees employer has
agreed to that by virtue
of seconding the employee to the entity. However, the
fact that the entity to whom an employee has been seconded exercises control
or
supervision over the seconded employee does not mean that that entity is the
employer of the employee. The employer of the
seconded employee remains the
one who seconded the employee to the other entity. Where the entity to which
an employee has been
seconded will also be an employer of the employee, the
employee will be in a situation such as the one contemplated in section 15(2)
of the PSA. In that situation an employee will be employed by both the entity
which seconded him or her to another entity as well
as by the one to which he
or she is seconded. Therefore, to rely on the fact that the applicant was
under the control and supervision
of ISS for the conclusion that the applicant
was an employee of ISS as opposed to being an employee of Unizul is misplaced
in the
light of the feature of secondment.
[97]
In
almost every secondment it will be the entity to which the employee has been
seconded that will exercise control and supervision
over the employee and yet
the seconded employee will not be an employee of that entity. Section 39(2) of
the SAPS Act makes
it clear that the South African Police Service is
deemed to remain the employer of a member who is seconded to another department
of State or any other authority established by or under any law even though
such member performs his or her functions in terms
of the laws applicable to
the department of State concerned.
[36]
[98]
As
we have seen from the provisions of section 15(3)(a) of the PSA, a secondment
covers the situation where A, an employer, allows
B, its employee, to perform
duties attached to a certain position in C, another entity, at the latters
request and for the latters
benefit. Indeed, B can even occupy a specific
position at C and yet remain an employee of A and not of C. In terms of
section
15(2) of the PSA, B could be seconded to C who would employ B for a
specified period while B also remains an employee of A. So,
for all intents
and purposes the matter can be approached on the basis that, when the applicant
says that, beyond 31 December 2005
and as at June 2008, although he was
the CEO of ISS, he remained an employee of Unizul, he means that he was still
on secondment
to ISS as an employee of Unizul as had been the case between
September 2002 and 31 December 2005.
[99]
The
issue of whether or not the applicant was an employee of Unizul as at
June 2008 in the context of this case requires that
we focus on what the
relationship between the applicant, Unizul and ISS was before 31 December 2005,
what happened on 31 December
2005 or on 1 January 2006, if anything, and
what the consequences thereof were beyond 31 December 2005.
[100]
Unizul
contends that the applicant was taken over by ISS as an employee after
31 December 2005 and not on or before 31 December
2005. In Unizuls
answering affidavit in the Labour Court Mr Govindsamy said: The secondment
remained in place until 31 December
2005. After December 2005 in terms of
clause 2.4 of the agreement ISS took over the employment of the three seconded
staff members.
This means that Unizuls case is that the applicant became an
employee of ISS after 31 December 2005. Although Unizuls case
is that
the applicant became an employee of ISS after December 2005, it does not
say what was done to make this happen, who
did it or how it came about. One
would have expected that it would point to an appointment that was made but
Unizul does not say
any appointment of the applicant as an employee of ISS was
made after December 2005. Nor does it say that any offer of employment
was
made to the applicant by ISS after 31 December 2005.
[101]
In
our law a person becomes an employee of another when the latter has offered
that person employment on certain terms and conditions
and that person has
accepted that offer. Without an offer being made, there can be no acceptance.
Without an offer and acceptance,
there can be no contract of employment except
in the case of a section-197 transfer. Unizul says that, by his conduct, the
applicant
consented by implication to being employed by ISS. However, in the
papers we do not find anything that tells us what offer was
made to the
applicant by ISS, when it was made, to what position it related, on what terms
and conditions it was made or by whom
it was made. Without evidence on this,
in our law a court cannot conclude that a contract of employment came about. Since
Unizul
alleges that a contract of employment existed between the applicant and
ISS, the onus is on Unizul to prove the existence of that
contract as well as
its terms and conditions.
[102]
In
Mr Govindsamys answering affidavit Unizul suggests that clause 2.4
created an employment regime. He says that the administrative
obligation
undertaken by Unizul in terms of the tripartite agreement did not in any way
whatsoever change the employment regime
created by the provisions of clause 2.4
of the agreement. Prior to this point in the answering affidavit Mr
Govindsamy had not
made any averment that the applicant consented to the
employment regime created by clause 2.4. This suggests that it is
not
part of Unizuls case that the so-called employment regime created by clause
2.4 required the applicants consent, whether
express or implied.
[103]
Mr
Govindsamy then says: The applicant is fully aware of the contractual state of
affairs between [Unizul], ISS and PanSALB and
in this regard attention is drawn
to the fact that he signed the agreement as a witness on behalf of ISS. This
sentence shows
that Unizuls case was not that the applicant consented to being
taken over by ISS but its case was that clause 2.4 per se caused
his takeover
by ISS to occur without anything else having to be done and that the applicant
was aware of that clause.
[104]
It
is not averred that the applicant ought to have objected to being taken over by
ISS if he was not happy with it. If that had
been said in Unizuls answering
affidavit, the applicant would probably have dealt with that averment head-on.
However, even without
Unizul having made this averment, in his replying
affidavit the applicant said that for him and the two other Unizul staff
members
to have been taken over by ISS as its employees, an agreement with them
was required. That contention is in line with the requirement
in
clause 2.5 of the tripartite agreement for the appointment of the
applicant and the other two Unizul staff members by the
ISS Board because, for
such appointments to occur, the applicants consent and that of each one of the
other two Unizul staff members
was required. In other words the applicants
reply could have been: But the only way I could have become an employee of ISS
was
by being appointed by the ISS Board as an employee of ISS and the Board
never appointed me as an employee of ISS.
[105]
In
the answering affidavit Mr Govindsamy said in paragraph 8.7: The applicant
furthermore with the formation of ISS . . . was appointed
as its [CEO], a
position which he currently still holds. This statement must be read
consistently with the statement in paragraph
8.3 of Mr Govindsamys affidavit
that [a]t the time that the [tripartite agreement] was entered into . . . the
applicant and two
other persons who were members of [Unizuls] staff were in
terms of the agreement seconded to ISS. The secondment remained in place
until
31 December 2005. After December 2005 in terms of clause 2.4 of the
agreement ISS took over the employment of
the three seconded staff members.
[106]
Reading
paragraphs 8.3 and 8.7 of Unizuls answering affidavit together highlights the
fact that the appointment of the applicant
as CEO of ISS occurred at the time
that the tripartite agreement was entered into which was 25 September 2002 when
the applicant,
on Unizuls own case, was an employee of Unizul and that between
25 September 2002 and 31 December 2005 he occupied the position
of CEO of
ISS even though he was not an employee of ISS but that of Unizul. Appreciating
this is critical because, if it is not
appreciated, one can easily be misled,
as the Labour Appeal Court was misled, into thinking that being CEO of ISS and
being an
employee of Unizul were mutually exclusive, when they are not. It is,
therefore, important to appreciate that what was supposed
to change on the
takeover contemplated by clause 2.4 was that the applicant would cease to
be an employee of Unizul and become
an employee of ISS.
[107]
Clause
2.4 of the tripartite agreement said that the takeover could be by
31 December 2005 or an earlier date. Obviously,
it was the ISS Board
which would make a decision whether the takeover would be earlier than 31
December 2005 or on that date.
Contrary to the submission made by counsel for
Unizul, the ISS Board needed to do something positively in order for the
takeover
to occur in terms of clause 2.4. Clause 2.4 cannot be read
in isolation. It must be read in the light of the entire
agreement. In
particular it must be read with clauses 2.5, 2.6 and 4.2(b). Clause 2.5
contemplated that the ISS Board would
appoint the Unizul staff members as ISS
employees. That included the applicant. That appointment is the positive act
that the
ISS Board needed to do in order for the takeover to occur.
[108]
If
the ISS Board offered the applicant employment as an ISS employee in a certain
position and he accepted it, the ISS Board would
appoint him into that position
and he would thus be taken over by ISS as its employee in that position in
terms of clause 2.4 with
effect from 1 January 2006 or with effect from an
earlier date agreed upon between him and the ISS Board. If, however, the
ISS
Board offered the applicant a position as an employee of ISS and he rejected
it, he would not be appointed as an ISS employee.
In such a case he would not
be taken over by ISS as its employee in terms of clause 2.4. He would remain
an employee of Unizul
until such time as Unizul had validly terminated his
contract of employment or until the applicant had resigned or retired. Therefore,
there is no room for the proposition advanced by counsel for Unizul that a
takeover of the applicant by ISS as its employee in
terms of clause 2.4 could
occur without his appointment by the ISS Board as an employee of ISS in terms
of clause 2.5.
[109]
In
fact Unizul accepts in its answering affidavit that clause 2.5 of the
tripartite agreement applied to the applicant. I say this
because in paragraph
8.4 of that affidavit Mr Govindsamy, inter alia, says: In terms of clause 2.5
of the agreement the remuneration
and employment benefits of the applicant and
the other two staff members were to be funded by PanSALB who was obliged to pay
[Unizul]
and [Unizul] would act as a conduit pipe channelling their monthly
salaries to them. Clause 2.5 clearly contemplates that there
would be an
appointment of the Unizul staff by the ISS Board as employees of ISS. Unizul
accepts that the staff referred to in
clause 2.5 included the applicant.
Clause 2.5 reads:
Unizul undertakes, in
respect of remuneration and benefits of staff to be appointed by the [ISS
Board], to channel their monthly
salaries to them from the funds made available
by PanSALB. (Emphasis added.)
This means that the tripartite agreement
contemplated that the applicant would be appointed by the ISS Board as its
employee. In
the absence of such an appointment, there could be no takeover of
the applicant by ISS as its employee in terms of clause 2.4.
[110]
In
terms of the tripartite agreement there was only one way of becoming an
employee of ISS, namely, to be appointed by the ISS Board
as an ISS employee.
Without an appointment by the ISS Board as an employee of ISS, nobody could be
an employee of ISS in terms
of the tripartite agreement. Therefore, any other
way of becoming an employee of ISS was not one in terms of the tripartite
agreement.
Unizul cannot succeed in showing that the applicant became an
employee of ISS if it is not able to show that the way in which he
became an
ISS employee is one provided for in the tripartite agreement because its
defence was that he was taken over by ISS as
an employee in terms of the
tripartite agreement.
[111]
Certainly,
as an employee who would be the CEO of ISS, the applicant could only be
appointed by the ISS Board. If, therefore, the
applicant did become an
employee of ISS, there must have been a decision of the ISS Board to appoint
him as an employee of ISS.
If there had been such a decision, proving it should
be very easy. Unizul has neither alleged that the ISS Board appointed the
applicant as an employee nor has it placed any evidence before the Court to
prove that there was a contract of employment between
the applicant and the ISS
Board. Indeed, it has also failed to prove that his contract of employment
with it came to an end in
any of the lawful ways in which a contract may be
brought to an end.
[112]
The
tripartite agreement does not tell us what position the applicant would occupy
in ISS after the takeover nor does it tell us
what the applicants salary and
other terms and conditions of employment would be. In this regard it is
critical to remember that
clause 2.4 does not say that ISS would take over
the applicants contract of employment. It says that it would take over the
three positions as well as the applicant and the other two Unizul staff members
as employees.
[113]
A
construction of the tripartite agreement to the effect that the applicant could
be taken over by ISS as its employee without the
appointment contemplated in
clause 2.5 would render clause 2.5 redundant. An agreement must not be
interpreted in a manner
that renders any of its clauses redundant if there is a
construction which can be placed upon it that does not render any of its
clauses redundant.
[114]
Unizul
bore the onus to prove that the ISS Board appointed the applicant as an
employee of ISS. Unizul is in partnership with ISS
in terms of the tripartite
agreement. That should make it easy for it to prove such a fact if such an
appointment ever occurred.
Furthermore, the Chairman of the ISS Board, Mr
Maphisa, is employed by Unizul as its Registrar.
[115]
As
Chairperson of the ISS Board Mr Maphisa had access to the records of the Board
including minutes of meetings which occurred before
his time as Chairperson.
He could produce the minutes of the meeting of the ISS Board in which the
decision to appoint the applicant
was taken. He could also produce the letter
of appointment sent or given to the applicant by the Board or produce a copy of
the
contract of employment that the Board concluded with the applicant. He did
not do any of this. In fact, he did not even say in
his affidavit that the
applicant was appointed as an employee of ISS even though he knew that his
affidavit was required in connection
with a dispute between the applicant and
Unizul as to whose employee the applicant was as at June 2008. He did not say
or do this
despite the fact that he deposed to an affidavit on behalf of Unizul
in the Labour Court. If there were any document of which Mr
Maphisa was aware
which could prove that the applicant was not employed by Unizul or that he was
employed by ISS, he would have
put it up in support of Unizuls case. He did
not do so because there is no such document and there is no such document
because
the fact that the applicant was employed by Unizul never changed.
[116]
The
applicants letter of appointment by Unizul in 1984 reflects that it was
compulsory for the applicant to be a member of Bonitas
Medical Fund, Group Life
Insurance Scheme and Associated Institutions Pension Fund. He must have become
a member of these after
his employment by Unizul in 1984 as the payslips he has
put up for August 2007 to May 2008 reveal that Unizul was still making
deductions for these in 2007 and 2008. There is no suggestion that the
applicants membership of these was ever interrupted.
[117]
The
applicant could not have continued to be a member of the abovementioned funds
and scheme after changing employers without signing
any documents. If he had
signed documents in connection with this, both Unizul and ISS would have been
in possession of copies
of those documents. Unizul would have put such
documents up. In the case of ISS, Mr Maphisa also would have had access
to
such documents at ISS and would have put them up. As Registrar of Unizul,
Mr Maphisa would also have had access to such documents
at Unizul.
[118]
From
June 2005 right through to beyond 31 December 2005 PanSALB did not pay any
funds over to Unizul which the latter would pay
over to ISS for salaries and
operational costs. This state of affairs may have deterred the ISS Board from
making staff appointments
which it could not fund in the absence of funding
from PanSALB. The applicant specifically states in his replying affidavit
that,
in the absence of funding from PanSALB, clause 2.4 of the tripartite
agreement could not be implemented. Unizul has not disputed
this evidence from
the applicant even though it had an opportunity to dispute it if it wanted to
because it filed a further affidavit
disputing another aspect of the
applicants replying affidavit.
[119]
The
appointment of the applicant as CEO of ISS which endured prior to
31 December 2005 is not the appointment contemplated
in clause 2.5. That
appointment was made at the time of the conclusion of the tripartite agreement
and was based upon the applicant
continuing to be an employee of Unizul whereas
what clause 2.5 contemplated was an appointment of the applicant and the other
two
Unizul staff members by the ISS Board as employees of ISS. The appointment
of the applicant as CEO of ISS while remaining an employee
of Unizul is common
cause and, therefore, no proof thereof is required. However, the allegation by
Unizul that after 31 December
2005 the applicant became an employee of ISS
is disputed. Accordingly, Unizul needed to prove that but has not done so. It
is
the absence of that proof that means that the applicant never became an
employee of ISS. Instead of Unizul discharging the onus
to show that the
applicant became an employee of ISS, there are indications that the applicant
was not an employee of ISS. I refer
to them below.
[120]
The
minutes of the meeting of 8 February 2008 referred to above reveal that
Prof Gumbi explained that the ISS Unit does not
belong to the Mangosuthu
University of Technology. [Unizul] has a verbal agreement with the Mangosuthu
University of Technology
to house the Unit on behalf of [Unizul]. (Emphasis
added.)
[121]
In
the same meeting of 8 February 2008 one of the items discussed was a revision
of the [tripartite agreement]. The minutes reveal
that one of the decisions
that was taken by agreement was that the tripartite agreement be amended. With
regard to clause 2.4
of the tripartite agreement it was agreed that clause 2.4
be rephrased to accommodate the current position. It will be recalled
that
the essence of clause 2.4 of the tripartite agreement was that ISS was to take
over the three Unizul positions and the three
Unizul staff members from Unizul as
its employees by 31 December 2005 or earlier.
[122]
The
decision that clause 2.4 be rephrased to accommodate the current position can
only mean that what clause 2.4 had contemplated
would be the position by
February 2008 was still not the position by that date. If what clause 2.4
envisaged would happen
by 31 December 2005 had happened, by February 2008
the applicant and the two Unizul staff members would long have been employees
of ISS. Accordingly, clause 2.4 would have achieved its purpose and there
would have been no need to rephrase it to accommodate
the current position.
It stands to reason that what the minutes mean is that the takeover of the
Unizul staff members to which
reference is made in clause 2.4 had not happened
and the applicant and the two staff members remained employees of Unizul. What
had to be done to ensure that clause 2.4 reflected the current position
as at February 2008 was to amend clause 2.4
to reflect that the applicant
and the two staff members remained in Unizuls employ. There is no other way
of reading item 3.1.1(c)
of the minutes of the meeting of 8
February
2008.
[123]
Understanding
the minutes of the meeting of 8 February 2008 to mean that clause 2.4 had
not achieved its purpose and that that
is why it had to be rephrased to
accommodate the current position accords with the applicants replying
affidavit. In that affidavit
the applicant said:
The [tripartite agreement] was signed in 2002 and at the
time ISS was not in a position to take over the staffing positions. The
basis
of the undertaking was that ISS expected to be in a position to take over
staffing positions by 31 December 2005.
The
applicant goes on to explain:
However in June 2005 PanSALB stopped funding ISS and as
a result the [tripartite agreement] could not be implemented. PanSALB again
failed dismally to perform in terms of clause 3 of the [tripartite agreement]. By
31 December 2005 ISS had not received funding
for six (6) months.
[124]
The
applicant said further:
It is also not correct that clause 2.4 of the agreement
resulted [in] the takeover of employment by ISS. The correct position is
that
ISS undertook to take over the employment. However they did not take over
employment.
In his replying affidavit
the applicant set out his understanding of the takeover envisaged in clause
2.4. He said:
In any event for ISS to take over the staff of Unizul
there must be a tripartite agreement signed by Unizul, ISS and by all the
employees who are to be taken over by ISS. In this case it is common cause
that there was no such tripartite agreement. There
was only a conditional
undertaking by ISS to take over the staff by a certain date. The conditions
were not fulfilled by PanSALB.
As a result ISS could not take over the staff.
It must be remembered that the person saying
this about ISS is the person who was ISSs CEO at the time when the takeover
was supposed
to happen. He knows what he is talking about. The Chairperson of
the ISS Board who could have contradicted him decided not to
contradict him in
his affidavit because he knew that the applicants evidence on this is true and
cannot be contradicted.
[125]
After
Unizul had received the applicants replying affidavit, it put up a further
affidavit in which a response was provided to
an issue that Unizul regarded as
a new matter in the applicants replying affidavit. In the further affidavit
Unizul did not challenge
the applicants version and understanding as set out
in the two preceding paragraphs.
[126]
After
he had learnt that the applicant was trying to convene a meeting of the
ISS Board to discuss his instruction that the
applicant should pay a
certain amount over to Unizul, Mr Maphisa, inter alia, wrote in his
memorandum of 14 February 2008:
If [the applicant] insists on this meeting as well as
resist to reimburse [Unizul], I will have no option but to recommend the
dissolution of the board to PanSALB and the freezing of ISS funds pending the
resolution of the impasse.
The
question that immediately arises is this: if the applicant was an employee of
ISS and if this was Mr Maphisas understanding
as well, as Chairman of the ISS
Board, why did Mr Maphisa not simply discipline the applicant when the
applicant was defying his
instruction to pay certain funds over to Unizul?
[127]
At
the time of this memorandum the dispute about whether ISS should pay over part
of the amount of R1,6 million it had received
directly from PanSALB in 2006 or
2007 had been going on for a long time and throughout this period Mr Maphisas
position was the
same as that of Unizul. It was that ISS should pay part of
the money over to Unizul as a refund of money that Unizul had paid to
ISS while
PanSALB was withholding payment. It is difficult to understand why, if the
applicant was an employee of ISS, Mr Maphisa
did not give him an ultimatum to
carry out the instruction or face dismissal. Instead, he threatened to get
PanSALB to dissolve
the ISS Board. That is a very strange way to deal with
your employees refusal to carry out your instruction.
[128]
Mr
Maphisas failure to give the applicant an ultimatum to pay the money over to
Unizul or face dismissal must also be viewed against
the background that the
applicants attitude was that Mr Maphisa should convene a meeting of the ISS
Board to discuss this issue
and reach finality but Mr Maphisa was not prepared to
convene a meeting of the ISS Board. The applicant had even tried to convene
a
meeting of the ISS Board but, when Mr Maphisa learnt of this, he had written a
strongly worded letter to the applicant. In his
letter of 19 March 2008 to
Mr Maphisa the applicant had even said:
As far as I can remember Chairperson, the [ISS Board]
has never met and deliberated on this matter and I am still pleading to you
to
convene a meeting of the [ISS Board] as a matter of urgency so that this matter
can be dealt with and finalised by the correct
forum.
It
appears that Mr Maphisa never convened a meeting of the ISS Board to deal with
the refund by ISS of some money to Unizul.
[129]
In
the letter dated 29 May 2008 from Prof Gumbi to the CEO of PanSALB,
Prof Gumbi also wrote: [Unizul] will be terminating
payments to members
of staff employed in the ISS Project if payment is not received by
12 June 2008. That letter was
on Unizuls letterhead and was signed
by Prof Gumbi. The reference to members of staff employed in the ISS Project
in that sentence
can only be a reference to Unizuls members of staff employed
in the ISS Project. If it was intended to refer to people who were
employees
of ISS, Prof Gumbi would not have referred to them as members of staff. She
would simply have referred to ISS employees.
[130]
It
is also odd that, on Unizuls case, for a period of over two years Unizul would
have continued to pay the salaries of someone
elses employees when it was
under no legal obligation to do so.
[131]
With
regard to the submission that by his conduct the applicant impliedly consented
to being taken over by ISS, there is not a single
place in Unizuls answering
affidavit in the Labour Court where Unizul says that the applicant consented to
his employment being
transferred to ISS or to him being so transferred. There
is also no place in the answering affidavit where Unizul says that the
applicant impliedly gave consent to the termination of his contract of
employment with Unizul or to his contract of employment
being taken over by
ISS. That is not part of Unizuls case on the papers.
[132]
There
are two paragraphs in Unizuls answering affidavit where something is said
about the applicant being aware of the relationship
among himself, PanSALB and
ISS. These are paragraphs 8.6 and 8.16. Paragraph 8.6 reads as follows:
The applicant is fully aware of the contractual state of
affairs between [Unizul], ISS and PanSALB and in this regard attention
is drawn
to the fact that he signed the agreement as a witness on behalf of ISS.
The
fact that the applicant was aware of the agreement entered into among Unizul,
ISS and PanSALB did not without more translate
to the applicant having
consented by implication to being taken over by ISS, certainly not without any
discussion with him.
[133]
Unizul
did not say that, once the applicant was aware of the tripartite agreement, he
had to object to it or parts of it within
a certain period and, because he did
not object to it, he was deemed to have consented to it. If this had been said
in Unizuls
answering affidavit in the Labour Court, the applicant would have
had an opportunity to deal with that case.
[134]
A
logical answer that the applicant could have given if this had been Unizuls
case may have been: I was aware that in terms of
clause 2.5 of the tripartite
agreement the ISS Board would have to appoint me as its employee for me to be
taken over by ISS and
I could not just become an employee of ISS without being
appointed by the ISS Board. If at that stage the Board made me an acceptable
offer, I would have accepted the offer and be appointed by the Board as ISSs
employee in which case I would have been taken over
by ISS as its employee in
terms of clause 2.4. If I did not like the offer, I would have rejected it, in
which case I would not
have been taken over by ISS as an employee. That
opportunity never arose because the ISS Board never offered to appoint me as
its employee.
[135]
Our
law is that in a civil matter if a court relies upon an inference to make a
finding, that inference must be the most plausible
one that can be drawn from
the facts. In the present case it cannot be said the inference that the
applicant agreed to be taken
over by ISS is the most plausible inference that
can be drawn from the facts. The facts are also consistent with the applicant
having been an employee of Unizul on secondment to ISS as the latters CEO. As
the ISS Board never made the applicant an offer
of employment, there can be no
justification for the inference that the majority judgment seeks to draw.
[136]
Paragraph
8.16 of Unizuls answering affidavit reads as follows:
Given the contents of annexures R1 to R11 it is
[Unizuls] respectful submission that the applicant is fully aware of the
relationship
that exists between [Unizul], ISS and PanSALB and consequently his
relationship with ISS. In making the allegations that he does
relating to
being employed by [Unizul] and that it has failed to pay his salary since [June
2008] is disingenuous in the extreme.
The
first part of paragraph 8.16 says nothing different from what was said in
paragraph 8.6 quoted above. The passage also
says that the applicant is
aware of his relationship with ISS. All of this is said on the basis of
annexures R1 to R11 attached
to Unizuls answering affidavit. Annexure
R1 is the tripartite agreement. Annexures R2, R3, R4, R6, R8,
R9, R10,
and R11 are letters and memos exchanged between the applicant
and some of the parties involved in the tripartite agreement and
between the
parties to that agreement themselves. They bear dates from May 2007 to May
2008. None of these annexures nor annexures
R1, R5, and R7 constitute a
basis for the suggestion that the applicant became an employee of ISS or that
he knew himself
to be employed by ISS or that he must be deemed to have
consented to being taken over by ISS. On the contrary there are statements
in
some of those annexures which seem to support the proposition that the
applicant was an employee of Unizul even in 2007 or at
least was treated as
such by Unizul.
[137]
If
the position was that, with effect from 31 December 2005 or
1 January 2006, the applicants employment of more than
two decades
had indeed come to an end, one would have expected Unizul to have written a
letter to the applicant marking this important
event and even thanking him for
his long service. There is no such letter. That is because his employment
with Unizul did not
come to an end nor was it Unizuls understanding at the
time that it had parted ways with the applicant. Indeed, there would have
been
a letter from Unizul to the applicant advising him of the position with regard
to his benefits after such a long period of
service. There is no suggestion
that the applicant had thus far not served Unizul well during all those years.
[138]
There
is not even a suggestion that any high ranking official of Unizul held a
meeting with the applicant at any time to talk about
the practicalities of his
exit from Unizuls service. None of these things happened because Unizul, ISS
and the applicant knew
that the applicant remained an employee of Unizul on
secondment to ISS. What happened here is simply that, after the applicant
had
instituted proceedings in the Labour Court, Unizul was advised that it
could rely on clause 2.4 of the tripartite agreement
to contend that the
applicant had ceased to be its employee on or after 31 December 2005.
[139]
In
the light of the above I conclude that, contrary to what was contemplated by
the parties to the tripartite agreement in clause
2.4, ISS did not take the
applicant over by 31 December 2005 or even subsequent to that date. This
means that the applicant
never became an employee of ISS.
[140]
The
next question is: if the applicant was not taken over by ISS as an employee on
31 December 2005 or 1 January 2006, then what
happened to the applicants
employment by Unizul at midnight on 31 December 2005? Did it come to an end?
Unizuls case was that
the applicants contract of employment came to an end in
terms of clause 2.4 of the tripartite agreement. The coming to an end
of the
applicants employment envisaged by clause 2.4 was to occur as a seamless
process as he was being taken over by ISS as its
employee with the result that
there was not going to be a time when the applicant was to be unemployed. That
is why in clause
2.4 ISS undertook to take him and the other two Unizul staff
members over by that date (ie by 31 December 2005 or even earlier).
What was
intended to bring the applicants contract of employment with Unizul to an end
was to be his takeover by ISS by that date
as an employee. If the takeover did
not happen, as I have found it did not, then the applicants contract of employment
did not
come to an end by virtue of clause 2.4.
[141]
In
the absence of the takeover, the applicants contract of employment with Unizul
could not have come to an end unless it was brought
to an end by any means
recognised in law as valid. Those include giving notice of termination,
summary termination of the contract
where there has been a material breach of
the contract, death or agreement. No notice of termination was given nor was
there a
summary termination of the employment contract. The applicants
contract of employment with Unizul could also have come to an end
if there was
a section-197 transfer of business as a going concern but there was no such
transfer in this matter.
[142]
Since
the tripartite agreement contemplated that the applicants consent to his
takeover by ISS as an employee would be given or
withheld in the context of the
ISS Boards appointment of the applicant as its employee in terms of clause
2.5, there is no room
for the contention that the applicant gave implied consent
to his being taken over by ISS outside of the appointment contemplated
by
clause 2.5. Implied consent to the takeover outside of the consent to the
appointment contemplated in clause 2.5 of the tripartite
agreement is
necessarily excluded by the fact that the consent required for the appointment
in clause 2.5 would serve as the consent
to the takeover.
[143]
On
31 December 2005 no takeover occurred but Unizul did not recall its staff that
had been seconded to ISS. It allowed them to
continue performing duties at ISS
and continued to pay them their salaries. In my view that suggests that the
secondment continued
as a matter of course with Unizuls blessing. If the
secondment continued beyond 31 December 2005, then all the reasons upon which
the Labour Appeal Court relied for its conclusion that the applicant was an
employee of ISS in June 2008, namely, that he was subject
to the control,
supervision and direction of ISS and not of Unizul, will not support that
conclusion. This is because, if an employee
has been seconded to another
entity, he is subject to the control, supervision and direction of the entity
to which he has been
seconded but remains an employee of the entity that
seconded him and not of the entity to which he is seconded unless he is an
employee of both as can happen in a case such as that envisaged in section
15(2) of the PSA. In those circumstances I conclude
that the applicants
employment with Unizul continued beyond 31 December 2005 and he was still an
employee of Unizul in June 2008
when Unizul stopped paying his salary. His
secondment to ISS was still ongoing and would come to an end if Unizul recalled
him
or brought it to an end in any lawful way or if the applicant ceased to be
an employee of Unizul.
[144]
On
the merits the majority judgment supports its conclusion that the applicant was
not an employee of Unizul in June 2008 but that
of ISS by saying that there is
an unavoidable inference that [the applicant] agreed to ISS becoming his
employer on 31 December
2005. The most remarkable feature of the
majority judgments reasoning is that it does not say anything about anybody
having
made the applicant an offer of employment on behalf of ISS which he can
be said to have accepted. So, in truth the majority judgment
suggests that in
law there can be an acceptance where there is no offer. I am not aware of any
authority in our law for such a
proposition nor is there one relied upon by the
majority judgment. I say that the majority judgment suggests that there can be
an acceptance without an offer because it says the applicant agreed to be
employed by ISS but is silent about when the ISS Board
ever made an offer of
employment to the applicant. Of course, the reason why the majority judgment
is silent on when the ISS Board
made an offer of employment to the
applicant and on who made the offer on behalf of ISS is that no such offer was
ever made. It
is difficult to conceive of a contract of employment or any
contract for that matter that is based on an acceptance without an offer.
[145]
The
majority judgment says the most important fact that supports the drawing of the
inference that the applicant agreed to ISS becoming
his employer on
31 December 2005 is that
[the applicant] was not merely one of ISSs staff. He
was not an unskilled factotum. He was the Editor-In-Chief. He was the
organisations animating force. He was its [CEO]. It was he who by his
signature witnessed the 2002 agreement on behalf of ISS.
This did not make him
party to the agreement. But, in the circumstances, it showed his conversance
with its terms, as his counsel
readily conceded; and all his subsequent conduct
bore this out. (Footnote omitted.)
Thereafter
the majority judgment mentions various things which the applicant did in the
performance of his duties as CEO of ISS
and concludes that he did all these
things because he was an employee of ISS and he knew it.
[146]
With
respect, the majority judgment completely misses the point in seeking to draw
the inference that it seeks to draw. Except
for two facts that preceded the
date of 31 December 2005, all the facts upon which the majority judgment
relies to justify
that inference occurred after 31 December 2005 and yet
they are relied upon to show that he agreed prior to 31 December 2005
to become
an employee of ISS on 31 December 2005. I deal briefly with both sets of
facts. The two facts relied upon by the
majority judgment which occurred prior
to 31 December 2005 are that the applicant was CEO of ISS and, that he signed
the tripartite
agreement as a witness and, was, therefore, conversant with the
terms of the tripartite agreement.
[147]
These
facts cannot possibly justify an inference that the applicant agreed to
become an employee of ISS after 31 December
2005 because they are not
necessarily inconsistent with being an employee o
f Unizul
on secondment to ISS as the latters CEO. Furthermore, they cannot justify
that inference when the tripartite agreement
itself contemplated in clause 2.4
read with clause 2.5 that the Unizul staff, including the applicant, would have
to be appointed
by the ISS Board as ISS employees. Therefore, whether the
applicant was CEO or an ordinary worker, he would have had to go through
the
same procedure as anyone else in terms of the tripartite agreement to become an
employee of ISS, namely, appointment by the
ISS Board.
[148]
Once
it is accepted that Unizuls case as set out in its affidavit in the Labour
Court is that the applicant became an employee
of ISS in terms of clause 2.4 of
the tripartite agreement, it follows that he would only have become an employee
of ISS, on Unizuls
case, by 31 December 2005 or at the latest on 1 January
2006. Therefore, his agreement to become an employee of ISS in terms of
the
tripartite agreement would have had to have occurred prior to 31 December 2005 or
at least with effect from 1 January 2006
and not after. Therefore, any facts
relied upon by the majority judgment which occurred in 2006, 2007 and 2008 are
irrelevant
because, by that time, the applicant had either become an employee
of ISS or had not become an employee of ISS.
[149]
The
facts relied upon by the majority judgment which occurred in 2006, 2007 and
2008 are briefly that the applicant attended a meeting
with the Premier of
KwaZulu-Natal to seek funding for ISS, attended a meeting with ISS, Unizul and
PanSALB, did not agree to pay
Unizul a certain portion of the amount of R1,6
million received by ISS from PanSALB, that the Premier of KwaZulu-Natal
addressed
a certain letter to the applicant, and that the applicant bought a
vehicle without the approval of the ISS Board. I do not understand
how these
facts could possibly justify an inference that the applicant was not an
employee of Unizul on secondment to ISS as its
CEO as was the case before
31 December 2005. In my view there are simply no facts upon which the
inference drawn by the majority
judgment can justifiably be drawn.
[150]
In
Cooper v Merchant Trade Finance
[37]
the
Supreme Court of Appeal said:
If the facts permit of more than one inference, the
Court must select the most plausible or probable inference. If this favours
the litigant on whom the onus rests, he is entitled to judgment. If, on the
other hand, an inference in favour of both parties
is equally possible, the
litigant will not have discharged the onus of proof.
[38]
[151]
What
is critical is whether there was a takeover of the applicant by ISS as an
employee on 31 December 2005 or 1 January 2006 in
accordance with clause 2.4 of
the tripartite agreement. The majority judgment does not deal with the
argument that under the tripartite
agreement nobody could become an employee of
ISS without being appointed by the ISS Board. In particular, the majority
judgment
does not deal with the fact that, in its answering affidavit in the
Labour Court, Unizul made it clear that the applicant was to
be dealt with in
terms of clause 2.5 of the tripartite agreement. That statement by Unizul
brings the applicant expressly within
the category of persons who were to be
appointed by the ISS Board. The majority judgment does not explain how the
applicant could
have become an employee of ISS outside of the terms of the
tripartite agreement in circumstances where he was not appointed by the
ISS
Board as required by clause 2.5 of the tripartite agreement.
[152]
In
the absence of proof of the applicants appointment by the ISS Board as its
employee, the only logical conclusion is that the
applicant never became an
employee of ISS in terms of the tripartite agreement. In the circumstances the
conclusion reached in
the majority judgment on the merits is not supported by
any evidence or any provisions of the tripartite agreement. In fact the
majority judgments conclusion is based on a case not foreshadowed in Unizuls
papers.
[153]
An
employer is obliged to pay an employee his or her salary or wages if the
employee has performed his or her work or has tendered
to perform his or her
work or has been prevented by the employer from performing his or her work.
[39]
In this case the applicant performed his work as expected by Unizul but the
latter did not pay him. Unizul then denied that he
was employed by it. So
dedicated was the applicant to his work that, even after Unizul had stopped the
payment of his salary,
he continued to go to work because there were deadlines
he had to meet. The applicant was prevented by Unizul from performing his
duties
by stopping the payment of his salary and denying that he was its employee.
There is no suggestion that the applicant would
not have continued to perform
his duties in the way expected of him had Unizul not stopped paying his salary
and had it not denied
that he was employed by it.
Relief
[154]
In
the light of the above I would have made the following order:
1. Leave
to appeal is granted.
2. The
appeal is upheld.
3. The
orders of the Labour Appeal Court and the Labour Court are set aside.
4. The
order of the Labour Court is replaced with the following:
(a) The
applicants application succeeds.
(b) It
is declared that as at June 2008 the applicant was an employee of the
respondent and his contract of employment with
the respondent has not been
validly terminated;
(c) The
respondent is ordered to pay the applicant all his remuneration and benefits
due to him;
(d) The
respondent is to pay the applicants costs.
5. Unizul
is to pay the applicants costs in the Labour Appeal Court, Supreme Court of
Appeal and in this Court.
JAFTA J (Moseneke DCJ and Nkabinde J
concurring):
[155]
I
have read the judgments prepared by my Colleagues Cameron J, Madlanga J and
Zondo J. I agree with Zondo J that the matter raises
a constitutional issue
and that leave to appeal must be granted. I also agree that the appeal must be
upheld and as a result the
order issued by the Labour Appeal Court must be set
aside. Since my approach to the matter is slightly different from the one
adopted by Zondo J, it is necessary to write a separate judgment.
[156]
As
all of my Colleagues have observed in their judgments, the first issue that
arises for determination is the question whether
the case raises a
constitutional issue. For it is only in that event that this Court would have
jurisdiction to adjudicate the
case. This means that if we find that no
constitutional issue has been raised, it should be the end of the matter. In
that event,
it is settled that there can be no pronouncement on the merits of
the appeal. A court that lacks jurisdiction may not adjudicate
a case. If it
does so, its pronouncement amounts to a nullity.
[40]
Jurisdiction
[157]
Ordinarily
the question of jurisdiction is determined with reference to the allegations
made in the plaintiffs or applicants pleadings.
The founding papers must
contain allegations that show that the court has jurisdiction.
[41]
In assessing whether this procedural requirement has been met, the proper
approach is to take the allegations in the particulars
of claim (summons) or
the founding affidavit at face value. Usually those allegations are taken to
be true for purposes of determining
jurisdiction. The question whether a court
has jurisdiction does not depend on the substantive merits of the case. The
allegations
which, if established, would prove jurisdiction are sufficient.
[158]
Langa
CJ in Chirwa
[42]
proclaimed the correct approach this Court follows in determining
jurisdiction. He said:
It seems to me axiomatic that the substantive merits of
a claim cannot determine whether a court has jurisdiction to hear it. That
much was recognised by this Court in Fraser v Absa Bank Ltd (National Director
of Public Prosecutions as Amicus Curiae). Van der
Westhuizen J, when deciding
on what constitutes a constitutional issue, held as follows:
An issue does not become a constitutional
matter merely because an applicant calls it one. The other side of the coin
is, however,
that an applicant could raise a constitutional matter, even though
the argument advanced as to why an issue is a constitutional
matter, or what
the constitutional implications of the issue are, may be flawed. The
acknowledgment by this Court that an issue
is a constitutional matter,
furthermore, does not have to result in a finding on the merits of the matter
in favour of the applicant
who raised it.
The corollary of the last sentence must be that the mere
fact that an argument must eventually fail cannot deprive a court of jurisdiction.
[43]
(Footnotes omitted.)
[159]
Although
his was a minority judgment, the approach laid down by Langa CJ was
subsequently endorsed by this Court in a unanimous
judgment in Gcaba. In that
case, Van der Westhuizen J said:
Jurisdiction is determined on the basis of the
pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the
case.
If Mr Gcabas case were heard by the High Court, he would have failed
for not being able to make out a case for the relief he sought,
namely review
of an administrative decision. In the event of the courts jurisdiction being
challenged at the outset (in limine),
the applicants pleadings are the
determining factor. They contain the legal basis of the claim under which the
applicant has
chosen to invoke the courts competence. While the pleadings
─ including, in motion proceedings, not only the formal terminology
of
the notice of motion, but also the contents of the supporting affidavits
─ must be interpreted to establish what the legal
basis of the
applicants claim is, it is not for the court to say that the facts asserted by
the applicant would also sustain another
claim, cognisable only in another
court. If, however, the pleadings, properly interpreted, establish that the
applicant is asserting
a claim under the [Labour Relations Act], one that is to
be determined exclusively by the Labour Court, the High Court would lack
jurisdiction. An applicant like Mr Gcaba, who is unable to plead facts that
sustain a cause of administrative action that is cognisable
by the High Court,
should thus approach the Labour Court.
[44]
(Footnote omitted.)
[160]
What
emerges from Gcaba is that in determining whether this Court, and for that
matter any court, has jurisdiction, one must examine
the pleadings with a view
to finding the legal basis of the claim under which the applicant has chosen
to invoke the courts competence.
[45]
The
caution that applies to this enquiry, as was observed in Gcaba, is that one
must consider whether the facts pleaded sustain
the pleaded cause of action.
Whether the facts also support another cause of action, not pleaded, is
immaterial. It follows that
the facts, as pleaded, play a crucial role in
determining jurisdiction.
[161]
With
this approach in mind, I proceed to the evaluation of what was pleaded by the
applicant.
Applicants cause of action
[162]
The
cause of action pleaded in the founding affidavit filed in the Labour Court was
simply this. The applicant and the University
of Zululand (Unizul) entered
into a contract of employment in 1984, in terms of which the applicant was
appointed as a researcher
in the isiZulu Dictionary Project. The employment
was for an indefinite period and it commenced on 1 September 1984. His
appointment
letter, which was attached to the founding affidavit, sets out the
terms of the employment agreement.
[163]
Unizul
paid his salary on a monthly basis until June 2008. He received a telephone
call from its Human Resources Manager, informing
him that payment of his salary
would be terminated on the instruction of the Chief Financial Officer of
Unizul. The latter confirmed
having issued the instruction but failed to give
reasons for the decision. The applicant continued working despite not being
paid
his salary.
[164]
Relying
on the provisions of the Basic Conditions of Employment Act,
[46]
the applicant pleaded:
This is an application in terms of section
77(1) and (3) of the [Basic Conditions Act], as amended, for an order directing
the
Employer Party to comply with the terms of my employment by paying my
monthly salary which was unlawfully stopped by the Employer
Party
.
[165]
In
determining whether the applicant raises a constitutional issue, the
allegations set out above must be regarded as true. On
that approach, the
issue becomes whether the withholding of the salary by the applicants employer
in the context of the Basic
Conditions Act involves a constitutional issue.
[166]
In
Fraser,
[47]
this
Court listed instances when a constitutional issue may arise. In a unanimous
judgment, Van der Westhuizen J said:
This Court has held that a constitutional matter is
presented where a claim involves:
(a) the
interpretation, application or upholding of the Constitution itself, including
issues concerning the status, powers
or functions of an organ of state and
disputes between organs of state;
(b) the
development of (or the failure to develop) the common law in accordance with
the spirit, purport and objects of the
Bill of Rights;
(c) a
statute that conflicts with a requirement or restriction imposed by the
Constitution;
(d) the
interpretation of a statute in accordance with the spirit, purport and objects
of the Bill of Rights (or the failure
to do so);
(e) the
erroneous interpretation or application of legislation that has been enacted to
give effect to a constitutional right
or in compliance with the legislatures
constitutional responsibilities; or
(f) executive
or administrative action that conflicts with a requirement or restriction
imposed by the Constitution.
[48]
(Footnotes omitted and emphasis added.)
[167]
For
present purposes, what is relevant is whether the cause of action pleaded by
the applicant involves the interpretation and application
of legislation
enacted to give effect to a constitutional right. As observed by Zondo J, the
Basic Conditions Act is such legislation.
It is evident from its long title
that this is the position. It reads:
To give effect to the right to fair labour practices
referred to in section 23(1) of the Constitution by establishing and making
provision for the regulation of basic conditions of employment; and thereby to
comply with the obligations of the Republic as a
member state of the International
Labour Organisation; and to provide for matters connected therewith.
[168]
This
is buttressed by section 2 of the Basic Conditions Act which provides that its
objects are─
to give effect to and regulate the right to fair labour
practices conferred by section 23(1) of the Constitution─
(i)
by
establishing and enforcing basic conditions of employment; and
(ii)
by
regulating the variation of basic conditions of employment.
[169]
It
cannot be gainsaid that the Basic Conditions Act applies to the present case.
This is apparent from the provisions of section
3. The section extends the
scope of the Basic Conditions Act to all employees and employers, excluding
only the exceptions listed
in it.
[49]
The
applicant and Unizul do not fall within those exceptions. What this means is
that the Act applies to all employment relationships
except those expressly
excluded. As a consequence, employment relationships between employers and
employees are not governed by
the contractual terms in the employment agreement
only, but are also regulated by the provisions of the Basic Conditions Act.
[170]
The
Basic Conditions Act gives effect to the constitutional right to fair labour
practices by laying down conditions of employment,
including the employers
obligation to pay remuneration. Withholding wages or a salary amounts to a
breach of that right. In
section 32, the Basic Conditions Act obliges every
employer to pay remuneration within seven days from the end of month, if the
employee is paid his or her salary on a monthly basis. The failure to pay the
applicant his salary within that period would constitute
a violation of the
section, unless it can be justified on a legal basis.
[171]
This
analysis illustrates that employment disputes are no longer determined by
reference to the employment contract only. The Basic
Conditions Act grants
employees additional statutory rights while at the same time it imposes
additional obligations on employers.
In these circumstances, withholding
remuneration not only constitutes a contractual breach, but it also amounts to
a violation
of the Act.
[50]
It
follows that the cause of action pleaded by the applicant includes the
application of the Basic Conditions Act. If proved,
it would show a breach of
the right to fair labour practices. It will be recalled that in this enquiry
the defence raised by Unizul
is not taken into account. The correctness of the
averment that Unizul is the employer is presumed. At this stage of the enquiry,
as this Court held both in Chirwa
[51]
and Gcaba,
[52]
the applicant does not have to show that he would succeed on the merits of the
claim.
[172]
All
he needs to do is to make allegations that, if proved, would show a breach of a
constitutional right or legislation passed to
give effect to a right in the
Bill of Rights. In a long line of cases, this Court has held that the
interpretation and application
of a statute enacted to give effect to a right
in the Bill of Rights raises a constitutional issue.
[53]
[173]
Consistent
with the principle of constitutional subsidiarity, where legislation has been
passed to give effect to a right in the
Bill of Rights, a litigant is not
permitted to rely directly on the Constitution for its cause of action.
[54]
In South African National Defence Union,
[55]
this
Court held that a litigant who wishes to assert a constitutional right given
effect to by legislation must rely on that legislation,
and not directly on the
right in the Bill of Rights. In that case, the Court said:
[A] litigant who seeks to assert his or her right to
engage in collective bargaining under section 23(5) should in the first place
base
his or her case on any legislation enacted to regulate the right, not on
section 23(5). If the legislation is wanting in
its protection of the section
23(5) right in the litigants view, then that legislation should be challenged
constitutionally.
To permit the litigant to ignore the legislation and rely
directly on the constitutional provision would be to fail to recognise
the
important task conferred upon the Legislature by the Constitution to respect,
protect, promote and fulfil the rights in the
Bill of Rights.
[56]
(Footnote omitted).
[174]
As
observed by Zondo J in this case, the Basic Conditions Act is the only
legislation that gives effect to the right to fair labour
practices in the
context of payment of salaries of workers. The Act finds application to all
disputes relating to non-payment
of salaries, regardless of whether an employee
has expressly referred to it or not. In Nichol,
[57]
the Supreme Court of Appeal said the following in the context of the Promotion
of Administrative Justice Act:
[58]
The review application (the main application) was
brought in terms of Uniform Rule 53, but it is now common cause that,
notwithstanding
the fact that no mention is made anywhere in the papers filed
in the main application of [the Promotion of Administrative Justice
Act] or any
of its provisions, the review would fall to be decided in terms of [the
Promotion of Administrative Justice Act].
[59]
(Footnote omitted.)
[175]
While
it is desirable that an applicant identifies the provision relied on, failure
to do so is not fatal to the cause of action.
[60]
This is
so because the application of legislation passed to give effect to a
constitutional right does not depend on what the
parties plead. If the pleaded
facts bring the cause of action within the ambit of such legislation then it
applies. Therefore,
the applicants failure to refer specifically to section
32 of the Basic Conditions Act does not lead to the exclusion of its
application
to the case. It is that application which raises a constitutional
issue.
Interests of justice
[176]
Establishing
that a matter raises a constitutional issue is one of the requirements for
leave to appeal. The other requirement
is the interests of justice, the
determination of which depends on an evaluation of a number of factors.
Although the prospects
of success are not decisive, they are a significant
factor weighing in favour of granting leave. For the purpose of adjudication
of cases is to do justice to the parties to particular litigation. As the
judgment of Zondo J illustrates, there are good prospects
of success here.
Therefore, leave to appeal must be granted.
Merits
[177]
As
outlined earlier, the applicants claim is a simple one. In 1984 he concluded
an employment agreement with Unizul, in terms
of which he became its employee
and was paid a monthly salary for his labour. In June 2008, payment of his
salary was stopped
by Unizul. In addition to being a breach of contract, this
conduct was unlawful because it contravened section 32 which applied
to the
employment relationship of the parties.
[178]
In
resisting the claim, Unizul raised a simple defence, namely, as at the time the
cause of action arose, it was no longer the applicants
employer. To
substantiate this defence, Unizul invoked an agreement it had concluded with
the other parties, to which the applicant
was not a party. Before examining
whether the agreement relied on by Unizul gave rise to the legal consequences
claimed by it,
it is necessary to remind ourselves of basic principles of our
law of contract.
[179]
The
first is where there is an agreement between parties, those parties may be
relieved of their obligations under the agreement
only if the agreement is
terminated. Thus, in this matter, Unizul would be relieved of its obligations,
under the employment agreement
it concluded with the applicant in 1984, only if
that agreement was terminated. This is so because that agreement was for an
indefinite
period.
[180]
Since
both parties to the 1984 agreement still exist, it could not be terminated by
death and as it was not for a fixed period,
it could not be terminated by
effluxion of time. Therefore, termination of that agreement could only be
brought about by the parties
themselves. The termination by the parties could
take one of two forms. It could either be effected unilaterally by one of the
parties or by mutual agreement of both parties. In our law, a unilateral
termination is permissible only if there is a breach
of the terms of the
agreement and may be effected by the innocent party only. Since there is no
evidence of a breach of the 1984
employment agreement, Unizul could not
unilaterally terminate it. There is also no evidence on record showing mutual
assent to
terminate that agreement.
[181]
Without
cancellation, Unizul was bound to honour its obligations under that agreement.
The Labour Court and the Labour Appeal Court
erred in defining the issue as
whether the applicant was an employee of Unizul. The real issue was whether
the employer-employee
relationship between the parties which arose from the
1984 employment agreement had been terminated. Therefore, in this context,
the
question is whether the applicant is no longer an employee of Unizul. There is
no evidence whatsoever on record indicating
that the agreement was terminated.
The tripartite agreement
[182]
The
tripartite agreement, on which Unizul relied for its defence, does not in its
terms terminate the 1984 employment agreement.
The closest it gets is to
renounce Unizuls rights under that agreement and permit Isikhungo
Sesichazamazwi SesiZulu (ISS) to recruit
its employees. It is clear from
clause 2 of the tripartite agreement that the parties to it intended that ISS
would, on a date
in the future, appoint staff who were employed by Unizul.
This cannot be construed as terminating the employment contract of the
applicant to Unizul which is the only act in law that could relieve Unizul of
its obligations under that contract.
[183]
Clause
2.4 of the tripartite agreement grants ISS the option of taking over staff of
Unizul, either within the period between September
2002 and 31 December 2005 or
on 1 January 2006. We know from the facts that an early takeover did not
occur. There is also no
proof that after 31 December 2005 ISS entered into
employment contracts with former employees of Unizul, including the applicant.
[184]
Clauses
2.5 and 2.6 put it beyond doubt that ISS was expected to appoint employees from
Unizuls staff. Clause 2.5 provides that
Unizul would pay remuneration and
benefits of staff to be appointed by the Board of Directors of ISS. Whereas
clause 2.6 provides
that Unizul undertakes to allow staff members appointed by
the Board of Directors to join the pension scheme and medical aid scheme
which
the Unizul members of staff subscribe to. The latter term could not apply to
the applicant because he was already a member
of those schemes. This compounds
the lack of clarity on employees of Unizul which the parties had intended ISS
to take over.
The relevant clauses are silent on the identity of the employees
to be taken over.
[185]
In
any event, such takeover could not constitute termination of existing
employment contracts. Our law allows employees to have
more than one employer
at any given time. So even if the applicant had concluded an employment
contract with ISS, which is not
established on the facts on record, that by
itself would not have relieved Unizul from its obligations under the 1984
employment
contract, unless it was a term of the 1984 employment agreement that
entering into employment with a third party would constitute
termination.
Unizul did not plead and prove such a case.
Reason for withholding salary
[186]
It
is common cause that Unizul continued to pay the applicants salary after
31 December 2005. This it did even though PanSALB
had breached their
agreement since June 2005 by failing to pay to Unizul funds earmarked to cover
remuneration and staff benefits.
Unizul furnishes different explanations for
continuing to pay salaries of employees at ISS. In the further answering
affidavit
filed by Unizul in response to the applicants replying affidavit,
Unizul says it continued to pay the salaries because, in a letter
furnished to
it, the Premier of KwaZulu-Natal had expressed support for the project.
[187]
But
in an earlier letter of 17 May 2007, addressed to PanSALB, Unizul said:
The University of Zululand
has always regarded ISS as an important project of the University. It is for
this reason that the University
has continued funding this project after the
suspension of funds by PanSALB. I would like all parties to start negotiations
on
the memorandum of agreement as soon as possible.
[188]
It
is apparent from the record that what prompted the decision to withhold the
applicants salary was his failure to pay the sum
of R1 219 057.28 to Unizul,
following an instruction from the Chairperson of ISSs Board who is also the
Registrar of Unizul.
The applicant took the view that the payment must be
authorised by the Board of ISS and, to this end, he attempted to convene a
meeting of the Board. The Chairperson rebuked him and advised members of the
Board not to attend the meeting. The applicant then
asked the Chairperson to
convene the meeting but the latter failed to do so.
[189]
It
is clear that a dispute relating to the payment of the debt owed to Unizul had
arisen between the applicant and the Chairperson.
Underlying that dispute was
the question of governance.
[190]
Regardless
of who between them was right, the failure to pay that debt could not
constitute justification for withholding the applicants
salary. The obligation
to pay his salary did not arise from the tripartite agreement. It arose from
his contract of employment
and the Basic Conditions Act. Whereas the debt to
Unizul arose from the tripartite agreement. For as long as the 1984 employment
agreement was not terminated, Unizul remained the applicants employer and was
obliged to pay his salary.
[191]
It
follows that the Labour Court and Labour Appeal Court were wrong in dismissing
the applicants claim.
CAMERON J (Froneman J, Mhlantla AJ,
Skweyiya J and Van der Westhuizen J concurring):
[192]
I
am indebted to my Colleague Zondo J for his exposition of the facts in the main
judgment, but respectfully differ from his approach
to the issues and
conclusion.
[193]
First,
there is no jurisdiction. Mr Mbatha does not in my view get past the initial
obstacle. His case cannot be entertained because
it raises no constitutional
issue.
[61]
He
instituted a contractual claim against the respondent University in the Labour
Court for reinstatement of his salary. The
sole question all along has been
simply this: Is the University Mr Mbathas employer? He says Yes. The University
says No. It
says a non-governmental organisation it houses, ISS, employs Mr
Mbatha.
[194]
After
failing to convince either the Labour Court or the Labour Appeal Court of his case,
Mr Mbatha applied unavailingly for leave
to appeal to the Supreme Court of Appeal,
and then to this Court. To obtain leave, at the date when he sought it, he had
to establish
not only that his case raised a constitutional issue, but that the
interests of justice favoured granting leave.
[62]
The
sticking point was, and remains, his failure to raise a credible constitutional
issue. Ordinarily, no appeal lies against
mere dissatisfaction with the
factual findings of a preceding courts decision, or its application of an
accepted legal test.
[63]
[195]
Throughout
the proceedings in this Court, Mr Mbathas argument has been that his right to
dignity
[64]
would be
infringed if the University could treat him like a chattel or serf by transferring
his employment contract to ISS without
his consent. This was not only
far-fetched, but off-point. The Universitys stance, all along, has been that
Mr Mbatha did in
fact consent to being transferred. So, the source of the
dispute has always been a simple question: Did he agree to work as an
employee
of ISS? The parties give directly opposing answers. The facts must tell. This
involves inquiring into the details of
his dealings with the University, ISS
and other bodies over a period of years, as they emerge from the evidence.
[196]
That
is precisely what the Labour Court and the Labour Appeal Court did. They examined
the facts, and found ringingly against Mr
Mbatha. That should have been the
end of the matter. Mr Mbathas attempt to conjure up a constitutional issue so
as to gain a
further examination by this Court of his factual dispute with the
University should fail. There is no discernible constitutional
issue.
[197]
No
constitutional point can be located in the fact that Mr Mbatha claims he is an employee
of the University under legislation
that protects employment. His dispute with
the University raises no issue of interpretation or disputed application of the
statutory
definitions, or any contested claim about the courts jurisdiction
over employees and employment disputes. It is a simple factual
dispute about
who his employer was. If it were otherwise, every dispute about an employees
true employer could reach this Court.
That cannot be.
[198]
Mr
Mbatha cannot gain constitutional access on the basis that his case involves
the interpretation or application of section 197
of the Labour Relations Act.
[65]
The Labour Appeal Court mentioned this provision in its judgment, and
expressed the opinion that this was a classic case of
its application.
[66]
But its reference was incidental, and immaterial to the basis of its decision.
Though expressing its view, the Court did so only
after saying clearly that this
is not an issue before us and that it was therefore not necessary to deal
with the issue whether
there was a transfer of a business.
[67]
A courts expression of view on a matter immaterial to its reasoning cannot
confer jurisdiction on an appellate court. The University
abandoned reliance
on section 197 in argument before us. In any event, even if section 197 were
in play, the sole issue, again,
is its application to the facts. The possible
peripheral relevance of the provision, where it has not been given any weight by
the lower courts, cannot strengthen Mr Mbathas claim to jurisdiction.
[199]
What
is more, the parties dispute has already been determined by two specialised
courts, the Labour Court and Labour Appeal Court.
In the absence of important
wider issues, that should be the end of it. This Court has made clear that it
will be slow to hear
appeals from the [Labour Appeal Court] unless they raise
important issues of principle.
[68]
There
is none here.
[200]
I
agree with the further reasons Madlanga J gives for finding that this Court
lacks jurisdiction to entertain Mr Mbathas appeal
and concur in his judgment. And
for the same reasons, I consider that, even if this Courts jurisdiction as
expanded by the Constitution
Seventeenth Amendment Act applies, it does not
afford Mr Mbatha any basis for a further appeal. As his counsel conceded, his
case
presents no arguable point of law of general public importance which this
Court ought to consider.
[69]
[201]
But
even if Mr Mbatha can find a constitutional toehold, his application for leave
to appeal must in my view fail. His claim has
no prospects of success. In
view of the main judgments comprehensive exposition of the facts, it is
necessary for me to set out
my reasons only briefly, since those facts lead to the
unavoidable inference that Mr Mbatha agreed to ISS becoming his employer
on 31
December 2005.
[202]
In
August 1984, the University appointed Mr Mbatha to a permanent position as a
researcher. In June 2000, ISS was incorporated
as a non-profit entity.
[70]
In September 2002, the University, ISS and PanSALB
[71]
concluded a Memorandum of Agreement. Under this agreement, the University
temporarily, until 31 December 2005 at the latest, seconded
Mr Mbatha and other
staff to ISS. And ISS undertook to take over the staff as its own employees by
no later than 31 December 2005.
The University would meanwhile pay the ISS
staff with funds provided by PanSALB.
[203]
The
question is whether that agreement took effect and Mr Mbatha thereby became an
employee of ISS. Here, the most important fact
is that Mr Mbatha was not
merely one of ISSs staff. He was not an unskilled factotum. He was the
editor‑in‑chief.
He was the organisations animating force. He
was its chief executive officer (CEO). It was he who by his signature witnessed
the 2002 agreement on behalf of ISS. This did not make him party to the
agreement. But, in the circumstances, it showed his conversance
with its terms,
[72]
as his counsel readily conceded; and all his subsequent conduct bore this out.
[204]
When
PanSALB withheld payments to ISS in mid-2005 because ISS failed to file
financial statements, it was Mr Mbatha who on behalf
of ISS attended a meeting
with the Premier of KwaZulu-Natal to discuss solutions. And it was to him, as
editor‑in‑chief,
that the Office of the Premier in January 2006 addressed
a letter undertaking to embrace all efforts to preserve the isiZulu language,
such as the work performed by the ISS. It was on the strength of this hopeful
prospect, procured by Mr Mbatha, that the University
on behalf of PanSALB resumed
payment of ISS salaries.
[205]
It
was Mr Mbatha who in February 2008 attended a meeting with PanSALB and the
University to discuss revising the 2002 agreement.
That meeting noted that
ISS is short of resources and would need some assistance from the University.
It resolved that ISS
should put their needs in writing and that the
University would deal with [the issue] internally. This was more than two
years
after the transfer of Mr Mbathas contract of employment to ISS. All
of it is consistent only with the fact that ISS was an
independent entity,
funded outside the University, which employed its own staff, including Mr
Mbatha as CEO and editor-in-chief.
None of it is compatible with the notion
that Mr Mbatha either was, or still regarded himself as, an employee of the
University.
[206]
Subsequent
events bring the point home sharply. When PanSALB paid an amount of some R1.6
million to ISS instead of the University,
it was to Mr Mbatha that the
University addressed repeated demands that the money be paid to it, for it had
paid Mr Mbatha and
other ISS staff their salaries in the expectation that
PanSALB would reimburse it. And it was Mr Mbatha who repeatedly refused
these
demands. Indeed, it was Mr Mbatha who, in March 2008, on ISS letterhead signed
by him on behalf of ISS, at length and with
vigour disputed the Universitys position
on the funds, complaining that he, as ISSs CEO, had not been informed of
certain dealings
with the chair of the ISS Board. He wrote: You will also
agree with me Chairperson that Corporate governance does not allow such
a
practice i.e. corresponding with the Chairperson of the organisation only and
not informing the CEO.
[207]
Instead,
during this very period, according to undisputed correspondence, it was Mr
Mbatha who, without the approval of the Board,
authorised the purchase of
equipment. Even though he had the opportunity, Mr Mbatha gave no account
of the allegations in
the correspondence. And it was he who authorised the purchase
of a vehicle despite the repeated injunctions of the chairperson
of the ISS Board
to repay the funds he was using.
[208]
In
all this, Mr Mbatha was running his own show. He was exercising plenary
authority as the CEO of ISS, exerting its organisational
and institutional
autonomy from the University, and his command of its resources and capacities. If
his actions had any tittle
of justification, it was only because he completely understood
and accepted, from the date he formally witnessed the Memorandum
of Agreement
in 2002, that at the end of 2005 ISS became fully autonomous from the
University and employed its own staff including
himself.
[209]
The
complaint that Mr Mbathas assent to the transfer of his employment to ISS is
nowhere expressly recorded surely misses the point,
which is that his assent
was incontrovertibly and abundantly manifested in everything he did for and on
behalf of ISS, as its CEO,
its editor-in-chief, and most importantly as the one
who controlled its purse strings. What is more, our law applies an objective
test for the existence of a contract.
[73]
The
University inferred from Mr Mbathas conduct that he had consented to ISS
becoming his employer. And that inference was abundantly
reasonable.
[210]
Mr
Mbathas conduct of his case is telling. He carried the burden of showing that
the University was his employer. His founding
affidavit was disquietingly sparse.
The sole attachments to it were his August 1984 letter of appointment and his
salary slips.
And despite the extended history of the parties dealings, he purported
to express puzzlement that the University had stopped paying
his salary. He said
that he had not been given reasons why. He had then tried to contact [his]
Union about this matter but
they could not assist [him] as it baffled them as
the kind of problem [he] had was sort of peculiar. Peculiar indeed. Just how
peculiar emerged only from the Universitys evidence. The University readily
owned that it had employed him in 1984, but put up
a mass of evidence
correspondence, agreements, minutes and a factual account establishing that
his employment with it ended,
with his agreement, on 31 December 2005.
[211]
With
the details of that evidence Mr Mbathas reply did not engage at all. All he
offered in response to the most crucial details
of the Universitys evidence were
bald denials. He did not explain why, while running ISS, he failed to repay
the University the
money PanSALB had paid for his salary. He did not explain the
purchase of the vehicle under his authority. He did not explain
why, if the
transfer of the employment contracts was not to go ahead as agreed in 2002, he,
as the one calling all the shots at
ISS, never raised a peep about it, then or
later.
[212]
The
Labour Appeal Court found that the hallmarks of an employment relationship
between Mr Mbatha and the University had ceased
to exist beyond December 2005.
[74]
It concluded that the University had established a clear and unambiguous
contractual arrangement that the employment relationship
with Mr Mbatha
would end on 31 December 2005, and that Mr Mbathas unit was on that date
severed and parcelled out to ISS.
[75]
It also
found that there was uncontroverted evidence on record establishing that Mr
Mbatha was clearly alive to the true nature
of his employment situation and
had at all times acted in consonance therewith.
[76]
[213]
All
these findings are in my view unimpeachable.
[77]
The Labour
Appeal Court also observed that it was disingenuous in the extreme for Mr
Mbatha to deny his employment by ISS and
yet conduct himself as its CEO in
dealings with the public.
[78]
That
finding, too, is unimpeachable.
Order
[214]
I
therefore make the following order:
The
application for leave to appeal is dismissed with costs.
MADLANGA J:
[215]
I have read the judgments by my Colleagues
Cameron J, Jafta J and Zondo J. I do not agree with Jafta J and Zondo J that
this matter
raises a constitutional issue. Instead I agree with Cameron J that
it does not and that, as a consequence, the application for
leave to appeal
falls to be dismissed with costs. I thought it necessary
to
write separately from Cameron J because to me there is not a scintilla of a
constitutional issue necessitating even paragraphs
[201] to [213] of his
judgment, which enter the debate on the facts. Also, I want to address some of
the propositions made by
Jafta J and Zondo J.
[216]
The contest between the parties is on the
facts, nothing more. And that is what the decisions of the Labour Court and
Labour Appeal
Court turned on. There is no contest between the parties about
the interpretation of the provisions of the Basic Conditions of
Employment Act.
[79]
Whether or not an employer/employee relationship existed between Unizul and the
applicant is a question of fact. An interpretation
of the provisions is not in
issue. The application of the provisions is axiomatic, if the applicant was an
employee of Unizul.
Thus the antecedent factual question is, was he?
[217]
It is exactly contests of this nature that Boesak
[80]
has decreed do not raise a constitutional issue. Writing for a unanimous Court
in Boesak, Langa DP says that there is no constitutional
issue if all there is,
is a challenge to a decision on the sole basis that it is wrong on the facts.
[81]
[218]
Does Grootboom
[82]
assist the applicant? I think not. As I see it, the issue in Grootboom was
not only about the fact whether Mr Grootboom had absented
himself from his
official duties without permission. In that case at one point this Court says
that [t]his matter revolves around
the correct interpretation and application
of section 17(5)(a)(i) of the [Public Service] Act.
[83]
On a conspectus, there was not even a dispute on the facts on which the
judgment ultimately turned. The question was more whether,
as a matter of
interpretation (not fact), one who goes on study leave whilst on suspension can
be said to have absented oneself
from official duties without permission as
contemplated in section 17(5)(a)(i). At the risk of being repetitive, in the
application
now before us the issue is purely factual: was the applicant still
employed by Unizul at the time payment of his remuneration stopped?
[219]
Boesak is important for another reason. There
the applicant had contended that the decision of the Supreme Court of Appeal
constitute[d]
an infringement of [his] constitutional rights as enshrined in
sections 12(1)(a) and 35(3)(h) of the Constitution, namely, the right
not to be
deprived of freedom and security without just cause and the right to a fair
trial.
[84]
This Court did not, without more, proceed to find that there was a
constitutional issue purely because the applicant said there
was one. What it
did instead was to look at the substance of the issues that he was raising and,
seeing them for what they were,
came to the conclusion that no constitutional
issue had been raised.
[220]
This Courts approach was similar in Phoebus.
[85]
In its application for leave to appeal the appellant in that case claimed that
the case involved an infringement of its property
right which might well
involve developing the common law relating to the vicarious liability of the
State for delicts committed
by police officers.
[86]
The appellant there also placed reliance on the obligations imposed on the
South African Police Service by section 205(3) of the
Constitution.
[87]
What this Court then held is instructive:
Upon closer examination, however, it is
clear that none of these contentions advanced on behalf of the appellant is
valid. The
appellants property rights under the Constitution are not engaged;
the duties imposed on the police by the Constitution carry the
matter no
further; and the reliance on the judgment in Carmichele . . . is misplaced.
The appellants constitutional right to
be protected in the enjoyment of its
property was not in issue. The constitutional foundation for this property
claim advanced
by counsel for the appellant, must be sought in the provisions
of section 25(1) of the Constitution. It is clear, however,
that these provisions
are inappropriate here. They are aimed at protecting private property rights
against governmental action
and are quite irrelevant here where the appellant
was originally deprived of its property by robbers and recovery of part of it
was later frustrated by the three thieves.
[88]
(Footnote omitted.)
[221]
Based on this and Boesak, in a scenario where
it is clear that the substance of the contest between parties is purely
factual, it
cannot be said to raise a constitutional issue purely because an
applicant says it does.
[89]
Otherwise, that would be the simplest stratagem by means of which the
unscrupulous would have their issues ventilated in this
Court under the guise
that they raise constitutional issues.
[222]
This approach is not at odds with the
proposition in Fraser
[90]
quoted
in [166] of Jafta Js judgment. There, all that Van der Westhuizen J is saying
is that a constitutional issue remains one
even if it may turn out to be
unmeritorious. That is not the same as saying that what in essence is a
factual issue may somehow
morph into a constitutional issue through the simple
facility of clothing it in constitutional garb.
[223]
This Court, of course, will grapple with
hotly contested factual issues as long as they are connected with a
well-grounded constitutional
issue.
[91]
[224]
I
thus conclude that there is no constitutional issue: not on the basis pleaded
by the applicant,
[92]
nor
on the bases that my Colleagues Jafta J and Zondo J rely on.
For
the Applicant:
Advocate
M Pillemer SC instructed by Jafta Inc.
For
the Respondent:
Advocate
S Budlender and Advocate L Kutumela instructed by Garlicke &
Bousefield Inc.
[1]
The
University of Zululand was established by the University of Zululand Act 43 of
1969. However, that Act was repealed and replaced
by the
Higher Education
Amendment Act 23 of 2001
.
[2]
59 of
1995.
[3]
Isi
Zulu for Zulu Dictionary Unit.
[4]
The
reference to a section-21 company is a reference to a company that used to be
provided for in
section 21
of the now repealed Companies Act 61 of 1973. This
provision regulates the incorporation of associations not for gain.
[5]
See
[136] below for an explanation of the annexures.
[6]
A judgment given at the conclusion of the hearing without the
judgment being reserved.
[7]
The gist of
section 197
of the
Labour Relations Act 66 of 1995
is
that it provides that, when a business or undertaking or service is transferred
as a going concern, the purchaser becomes the
new employer of the employees in
the business or undertaking or service.
[8]
66 of
1995.
[9]
75 of 1977.
[10]
National Education Health and Allied Workers Union v University of
Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) (
NEHAWU v UCT
).
[11]
Id at
para 14.
[12]
Section
10 of the Constitution provides: Everyone has inherent dignity and the right
to have their dignity respected and protected.
[13]
NEHAWU
v UCT
above n 10.
[14]
See
[157] below.
[15]
Senwes
Ltd v Competition Commission of South Africa
[2011] ZASCA 99.
[16]
Id at para 59.
[17]
Competition
Commission of SA v Senwes Ltd
[2012] ZACC 6
;
2012 (7) BCLR 667
(CC) (
Senwes
).
[18]
Id at
paras 16-7.
[19]
Competition
Commission v Yara South Africa (Pty) Ltd and Others
[2012] ZACC 14
;
2012
(9) BCLR 923
(CC) (
Yara
) at paras 13 and 47. See also
Pharmaceutical
Manufacturers Assocation of SA and Another: In re Ex parte President of the
Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 35.
[20]
Competition
Commission v Loungefoam (Pty) Ltd and Others
[2012] ZACC 15
;
2012 (9) BCLR
907
(CC) (
Loungefoam
).
[21]
NEHAWU v UCT
above n 10 at para 40.
[22]
Ex
Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996
(10) BCLR 1253
(CC) (
First Certification Case
).
[23]
Id at
para 67.
[24]
NEHAWU
v UCT
above n 10 at para 35.
[25]
Grootboom v National Prosecuting Authority and Another
[2013] ZACC 37.
[26]
103 of
1994.
[27]
Section
17(5) of the Act has since been substituted by
section 25
of the
Public Service
Amendment Act 30 of 2007
, and is now subsection 17(3)(a) and (b) of the Public
Service Act.
[28]
Grootboom
above n 25 at paras 4-11.
[29]
Id
at para 42.
[30]
Id
at para 37.
[31]
68 of
1995.
[32]
65 of
2002.
[33]
Grootboom
above n 25 at para 38.
[34]
Published
in
Government Gazette
21951
of 5 January 2001.
[35]
Id
Part VII.
[36]
See
also section 39(3) of the SAPS Act.
[37]
Cooper
and Another NNO v Merchant Trade Finance Ltd
[1999] ZASCA 97
;
2000 (3) SA
1009
(SCA) (
Cooper v Merchant Trade Finance
).
[38]
Id at
para 7.
[39]
National
Union of Textile Workers and Others v Jaguar Shoes (Pty) Ltd
1987 (1) SA 39
(N)
at 44J-46D
,
particularly at 46A-D.
[40]
SOS-Kinderdorf
International v Effie Lentin Architects
1991 (3) SA 574
(NMHC) (
SOS-Kinderdorf
)
at 577G-H.
[41]
Gcaba
v Minister of Safety and Security and Others
[2009] ZACC 26
;
2010 (1) SA
238
(CC);
2010 (1) BCLR 35
(CC) at para 75;
Thermo Radiant Oven Sales (Pty)
Ltd v Nelspruit
Bakeries (Pty) Ltd
1969 (2) 295 (AD) and
SOS-Kinderdorf
above n 40.
[42]
Chirwa
v Transnet Ltd and Others
[2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3)
BCLR 251 (CC).
[43]
Id
at para 155.
[44]
Gcaba
above n 41 at para 75.
[45]
Id.
[46]
75 of 1997 (Basic Conditions Act).
[47]
Fraser
v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae)
[2006] ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR 219
(CC)
.
[48]
Id at para 38.
[49]
Section 3 provides:
(1) This Act applies to all employees and
employers except−
(a) members
of the National Defence Force, the National Intelligence Agency and the South
African Secret Services; and
(b) unpaid
volunteers working for an organisation serving a charitable purpose.
(2) This
Act applies to persons undergoing vocational training except to the extent that
any term or condition of their
employment is regulated by the provisions of any
other law.
(3) This
Act, except section 41, does not apply to persons employed on vessels at sea in
respect of which the Merchant
Shipping Act 1951 (Act No. 57 of 1951), applies
except to the extent provided for in a sectoral determination.
[50]
Denel
(Edms) Bpk v Vorster
[2004] ZASCA 4
;
2004 (4) SA 481
(SCA) at para 16.
[51]
Chirwa
above n 42 at para 155.
[52]
Gcaba
above n 41 at para 75.
[53]
Camps
Bay Ratepayers and Residents Association and Another v Harrison and Another
[2010] ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC);
Equity Aviation
Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC);
Mphela
and Others v Haakdoornbult
Boerdery CC and Others
[2008] ZACC 5
;
2008 (4) SA 488
(CC);
2008 (7) BCLR 675
(CC);
Fuel Retailers Association of
Southern Africa v Director-General
:
Environmental Management, Department
of Agriculture, Conservation and Environment, Mpumalanga
Province, and
Others
[2007] ZACC 13
;
2007 (6) SA 4
(CC);
2007 (10) BCLR 1059
(CC);
Radio Pretoria v Chairperson, Independent Communications Authority
of South Africa and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC
);
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC
) (
Bato
Star
);
Dudley v City of Cape Town and Another
[2004] ZACC 4
;
2005 (5) SA 429
(CC);
2004 (8) BCLR 805
(CC);
Alexkor Ltd
and Another v The Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC);
Ingledew v
Financial Services Board: In Re Financial Services Board v Van der Merwe and
Another
[2003] ZACC 8
;
2003 (4) SA 584
(CC);
2003 (8) BCLR 825
(CC); and
National Education Health and Allied Workers
Union
v University of Cape Town and Others
[2002] ZACC 27;
2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC).
[54]
Mazibuko
and Others v City of Johannesburg and Others
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at para 73 and
MEC for Education,
KwaZulu-Natal, and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) at para 40.
[55]
South
African National Defence Union v Minister of Defence and Others
[2007] ZACC
10; 2007 (5) SA 400 (CC); 2007 (8) BCLR 863 (CC).
[56]
Id at
para 52.
[57]
Nichol
and Another v Registrar of Pension Funds and Others
[2005] ZASCA 97
;
2008
(1) SA 383
(SCA) (
Nichol
).
[58]
3 of
2000.
[59]
Nichol
above n 57 at para 8D.
[60]
Bato Star
above n 53 at paras 26-7.
[61]
On the
date when Mr Mbatha applied to this Court, section 167(3) of the Constitution
provided that this Court may decide only
constitutional matters, and issues
connected with decisions on constitutional matters. The possible relevance of
the Constitution
Seventeenth Amendment Act of 2012, which has since come into
force, is discussed below.
[62]
See,
for example,
Coetzee v National Commissioner of Police and Another
[2013] ZACC 29
at para 19.
[63]
Id at
para 27;
Mankayi v AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA 237
(CC);
2011 (5) BCLR 453
(CC) at para 12;
Minister of Safety and Security v
Luiters
[2006] ZACC 21
;
2007 (2) SA 106
(CC);
2007 (3) BCLR 287
(CC) at
para 27;
Phoebus Apollo Aviation CC v Minister of Safety and Security
[2002]
ZACC 26
;
2003 (2) SA 34
(CC);
2003 (1) BCLR 14
(CC) at para 9; and
S v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para
15.
[64]
Section 10 of the Bill of Rights provides:
Everyone has inherent
dignity and the right to have their dignity respected and protected.
[65]
66 of
1995.
[66]
Mbatha
v University of Zululand
[2012] ZALAC 47
at para 17.
[67]
Id.
[68]
National
Education Health and Allied Workers Union v University of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 31.
[69]
The
Constitution Seventeenth Amendment Act of 2012, which came into force on 23
August 2013, amends section 167(3) of the Constitution.
This section now
provides that this Court may decide a non-constitutional matter if it grants
leave to appeal on the grounds that
the matter raises an arguable point of law
of general public importance which ought to be considered by it.
[70]
ISS
was incorporated as a company not for profit in terms of section 21 of the
Companies Act 61 of 1973.
[71]
PanSALB is established in terms of the
Pan South African Language Board Act 59
of 1995
, in accordance with section 6(5) of the Constitution.
[72]
That
is not to say that a witness to a will or agreement is always presumed to know
its contents. See Wigmore
On Evidence
Chadbourn revised ed (Little,
Brown and Co, Boston 1972) vol 4 at §1292-3.
[73]
This
is a consequence, in particular, of the doctrine of quasi-mutual assent. See,
for example,
Slip Knot Investments 777 (Pty) Ltd v Du Toit
[2011] ZASCA
34
;
2011 (4) SA 72
(SCA) at para 9 and
Sonap Petroleum
(
SA
) (
Pty
)
Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis
[1992] ZASCA 56
;
1992 (3)
SA 234
(A) at 239F-240B, citing the classic dictum of Blackburn J in
Smith v
Hughes
(1871) LR 6 QB 597
at 607.
[74]
Labour
Appeal Court judgment above n 66 at para 14.
[75]
Id.
[76]
Id at
para 19.
[77]
For
that reason, Mr Mbathas case is very different from
National Union of
Metalworkers of SA and Others v
Spinmet (Pty) Ltd
(1992)
13 ILJ 1459 (LAC), where the Labour Appeal Court found that there was no
evidence that the applicant employee ever knew
about or consented to his transfer
to another employer.
[78]
Labour
Appeal Court judgment above n 66 at para 15.
[79]
75 of
1997.
[80]
S v
Boesak
[2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC).
[81]
Id at
para 15.
[82]
Grootboom
v National Prosecuting Authority and Another
[2013] ZACC 37.
[83]
Id at
para 37. See also para 3.
[84]
Boesak
above n 80 at para 3. (Footnotes omitted.)
[85]
Phoebus
Apollo Aviation CC v Minister of Safety and Security
[2002] ZACC 26
;
2003
(2) SA 34
(CC);
2003 (1) BCLR 14
(CC) (
Phoebus
).
[86]
Id at
para 3.
[87]
Section 205 reads:
(1) The
national police service must be structured to function in the national,
provincial and, where appropriate, local
spheres of government.
(2) National
legislation must establish the powers and functions of the police service and
must enable the police service
to discharge its responsibilities effectively,
taking into account the requirements of the provinces.
(3) The
objects of the police service are to prevent, combat and investigate crime, to
maintain public order, to protect
and secure the inhabitants of the Republic
and their property, and to uphold and enforce the law.
[88]
Phoebus
above n 7 at para 4. To explain the reference to three thieves, in that case the
appellant corporation was robbed of a large sum
of money when an armed gang
gained access to the home of the appellants controlling member. The
investigating officer traced
part of the spoils to the home of the father of
two of the robbers. Accompanied by an informer the investigating officer went
there, only to discover that the money was gone. He had been forestalled by
three dishonest police officers who had taken the money
the previous day. On the
pretext of being about police business they induced the father to hand over his
sons cache.
[89]
Fraser
v ABSA Bank Ltd (National Director of Public Prosecutions as
Amicus Curiae
)
[2006] ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR 219
(CC) at para 40.
[90]
Id.
[91]
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others
[2004]
ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para 52.
[92]
The
applicant pleaded an infringement of the right to dignity in section 10 of the
Constitution.