THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: J1383/21
In the matter between:
SOUTH AFRICAN MEDICAL ASSOCIATION
o.b.o LORATO MOGALE Applicant
and
MEC DEPARTMENT OF HEALTH, GAUTENG Respondent
Heard: 23 October 2025
Delivered: 03 August 2026
JUDGMENT
SETI-BAZA, AJ
Introduction
[1] In this application, the applicant ( SAMA), acting on behalf of Dr Lorato
Mogale (Dr Mogale), its member, has brought this application in terms of
section 77A(e) of the Basic Conditions of Employment Act 75 of 1997
(BCEA) where it seeks an order: (i) declaring the respondent’s conduct of
discounting Dr Mogale’s rural allowance be declared unlawful and in breach
of the employment contract between Dr Mogale and the respondent; (ii) that
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
the respondent is not precluded from paying a rural allowance to Dr Mogale
in terms of the collective Resolution 2/2004 entered between SAMA and the
respondent; and (iii) Directing the respondent to resume payment of rural
allowance at R6 763.61 per month to Dr Mogale effective as from April 2014.
[2] In the alternative, SAMA seeks an order declaring that the arbitration award
of the Public Health and Social Development Sectoral Bargaining Council
(PHSDSBC) under case number PSHS912-14/15 and/or the judgment of the
review application in the matter between MEC: Department of Health v
SAMA obo Matlebyane and 4 Others is equally applicable to Dr Mogale as
one of the affected employees affected by the discontinuation of the rural
allowance, thereby ordering. As such ordering the respondent to pay Dr
Mogale a just and fair rural allowance as entitled in the aforementioned
award.
Background facts
[3] The material background facts are largely common cause, save where
indicated. Dr Mogale is a medical doc tor in the employ of the Department of
Health, Gauteng and is based at Refentse Community Health Centre,
Stinkwater, in Hammanskraal, Pretoria.
[4] The facility where Dr Mogale worked in Hammanskraal was demarcated as
qualifying for rural allowance in terms of Resolution 2 of 2004, which came
into effect on 1 July 2003 (the Resolution ), which governs payment of rural
allowances in the public sector.
[5] The listed objectives of the Resolution, amongst others, are:
5.1. Attract and retain health professionals on a full -time basis to the Public
Health Service as managed by the Health Employer in the rural areas;
5.2. Effect payment in respect of rural allowance in terms of the 13 ISRD
(Rural Nodes) identified as priority;
5.3. Revise the current non- pensionable recruitment allowance, referred to
as ‘the rural allowance’, equating to 18% of a medical officer’s monthly
3
salary, payable to medical officers, dentists, specialists and medical
and/or dentist superintendents working in PSCBC designated hospitals
and/or institutions in underserved rural areas; and
5.4. Allow for the Provincial Heads of Health to determine and designate
the other inhospitable health institutions with definite recruitment and
retention needs, dependent on the availability of funds.
[6] The payment of the rural allowance would be reviewed or terminated in the
following cases:
6.1. In the event of transfer/promotion, the allowance would be terminated ,
provided that on transfer/promotion, the allowance was being paid; and
6.2. In the event of reclassification of the institution, the allowance would be
reviewed or terminated after giving the affected employees three (3)
months’ notice.
[7] In April 2014, Dr Mogale’s rural allowance was terminated by the respondent
on the basis of a change in policy in the National Department of Health, which
reclassified Dr Mogale’s workplace as urban as opposed to rural. In other
words, because of the change in policy, Dr Mogale’s workplace now fell under
the Gauteng Province, and the Gauteng Province was omitted from the list of
inhospitable and rural areas in the Resolution.
The pleadings and submissions
The BCEA claim: Breach of employment contract
[8] The legal basis upon which SAMA engages this Court’s jurisdiction is in terms
of section 77 A(e) of the BCEA which provides that this Court may make any
appropriate order including making a determination that it considers
reasonable on any matter concerning a contract of employment in terms of
section 77 (3) of the BCEA, which determination for the present purpose
SAMA submits include the grant of an order of specific performance being to
declare as invalid and unlawful the termination of Dr Mogal e’s rural allowance
in terms of the employment agreement concluded with the respondent.
4
[9] SAMA’s complaint is that the respondent breached Dr Mogale’s employment
contract in that it terminated Dr Mogale’s rural allowance without notice.
SAMA further submits that, notwithstanding the reclassification of Dr Mogale’s
workplace, the benefit of rural allowance ought to have attached to her in
terms of section 197 of the Labour Relations Act 66 of 1995 (the LRA) when
her workplace was incorporated into the Gauteng Province. SAMA then
concludes that the respondent’s conduct in this regard was in contravention of
Dr Mogale’s contract of employment, read together with the provisions of the
Resolution, which is binding on both SAMA and the respondent.
[10] As a remedy , SAMA seeks a declaratory order, declaring the respondent’s
conduct of discontinuing Dr Mogale’s rural allowance in breach of her contract
of employment and that the respondent be directed to resume payment of
rural allowance at R6763.61 to Dr Mogale, effective as from April 2014, being
the outstanding amount since the date of termination of Dr Mogale’s rural
allowance.
[11] SAMA’s cause of complaint is pleaded as follows in the founding affidavit:
‘In accordance with my contract of employment, I was paid a rural allowance
by virtue of my place of employment demarcated as qualifying for rural
allowance. Though I cannot locate my initial contract of employment, I attach
a letter of appointment and a sample of my payslip confirming my
employment and previous payments of rural allowance.
The Payment of rural allowance in the Public Sector is regulated by a
collective agreement, Resolution 2 of 2004, which came into effect on 1 July
2003. The purpose of the Resolution is to provide for the payment of rural
allowance to public sector health professionals working in hospitals and/or
institutions as managed by the Health Employer in ISRD Nodes and Rural
Areas.
In April 2014, my rural allowance was terminated by the respondent without
notice. The reasoning of the respondent in its conduct was that my workplace
notice. The reasoning of the respondent in its conduct was that my workplace
had fallen under Gauteng. The Gauteng province is omitted on the list of
inhospitable and rural areas in the Resolution.
5
I thus submit that the conduct of the respondent was in contravention of my
contract of employment, read together with the provisions of the Resolution
which is binding on respondent and SAMA- myself, by extension.’
[12] In opposing the BCEA claim, the r espondent’s defence rests solely on its
preliminary point of jurisdiction. The respondent contends that this Court lacks
jurisdiction because SAMA’s complaint falls squarely within the ambit of unfair
labour practice and is classified as an unfair labour dispute, which ought to
have been first referred to the Bargaining Council and not to this Court. In
addition, the r espondent contends that there are no exceptional
circumstances expressed in SAMA’s founding affidavit that would warrant that
its application be dealt with in terms of section 77A(e) and 77(3) of the BCEA.
The Declaratory Order
[13] The basis of SAMA’s alternative claim, in the form of a declaratory order is as
follows: (i) the issues raised in the arbitration award and subsequently in the
review judgment pertaining to payment of rural allowance are similar to Dr
Mogale’s issues and therefore the arbitration award and/or review judgment
ought to equally extend to Dr Mogale , (ii) in repl y SAMA contends that the
decision to terminate rural allowance has been vitiated by a legal process
through the arbitration award and the judgement of the review application.
Such vitiation of a decision is not only limited to certain doctors.
[14] In opposing the declaratory relief sought, the respondent contends that (i) Dr
Mogale was not part of the proceedings before Judge Witcher (the review
application). The judgment does not include any other employees but w as
granted in favour of the parties which were before the court; (ii) the applicant
has not provided evidence demonstrating that Dr Mogal e referred her dispute
to the bargaining council and/or the decision of the bargaining council
evincing its refusal to adjudicate the referral based on res judicata; and (iii) the
evincing its refusal to adjudicate the referral based on res judicata; and (iii) the
applicant could not have referred Dr Mogal e’s dispute to bargaining council
because the referral was out of the 90 days’ rule in terms of the LRA.
[15] The respondent further contends that t he termination of Dr Mogal e’s rural
allowance was lawful because the institution in which Dr Mogale is employed
6
and based was subsequently reclassified under Gauteng Province as urban.
Due to the aforesaid reclassification, so the argument of the respondent goes,
Dr Mogale became ineligible for the rural allowance as per the provisions of
the Resolution. It is on this basis that the respondent submits that there are no
valid grounds raised that warrant the decision to be declared unlawful and
invalid.
[16] In addition to the aforesaid defences, the respondent in its heads of argument
has subsequently raised several points of law in its heads of argument which
include inter alia, prescription of SAMA’s claim, non-joinder of the Minister(s)
of Health and Finance and the MEC for Finance. In this regard, the
respondent contends that such point s of law are foreshadowed in the papers
filed before this Court and thus is entitled to advance such points.
[17] It is only appropriate that this Court first determines whether it possesses the
requisite jurisdiction prior to commencing the determination of the remainder
of the issues.
Jurisdiction of the Labour Court
[18] Section 77(3) of BCEA provides that:
‘The Labour Court has concurrent jurisdiction with the civil courts to hear and
determine any matter concerning a contract of employment, irrespective of
whether any basic condition of employment constitutes a term of that
contract.’
[19] In terms of this section, any claim that has to do with a dispute over a contract
of employment, which could be brought in a civil court, falls within the
jurisdiction of the Labour Court.
[20] In Gcaba v Minister for Safety and Security and Others 1 (Gcaba), the
Constitutional Court held that:
‘Jurisdiction is determined on the basis of the pleadings… and not the
substantive merits of the case … In the event of the court’s jurisdiction being
1 2010 (1) SA 238 (CC); [2009] ZACC 26 at para 75.
7
challenged at the outset ( in limine ), the applicant’s pleadings are the
determining factor. They contain the legal basis of the claim under which the
applicant has chosen to invoke the court’s competence.’
[21] In Gcaba2 the term ‘jurisdiction’ was defined as “the power or competence of
a court to hear and determine an issue between the parties”.
[22] It is trite that the case the Court is required to decide in the case of motion
proceedings is determined by the notice of motion and the founding affidavit.
In National Council of Societies for the Prevention of Cruelty to Animals v
Openshaw3 it was held that:
‘It is trite law that the applicant in motion proceedings must make out a proper
case in the founding papers. Miller J in Shakot Investments (Pty) Ltd v Town
Council of the Borough of Stanger, puts the matter thus:
“In proceedings by way of motion the party seeking relief ought in his
founding affidavit to disclose such facts as would, if true, justify the
relief sought and which would, at the same time, sufficiently inform the
other party of the case he was required to meet’…” ’
[23] The Supreme Court of Appeal in Makhanya v University of Zululand 4 stated
that the pleadings of a case were definitive:
‘… the claim that is before a court is a matter of fact. When a claimant says
that the claim arises from the infringement of the common law right to enforce
a contract, then that is the claim, as a fact, and the court must deal with it
accordingly…’
[24] SAMA, in asserting Dr Mogale’s right based on breach of her contract of
employment, simply alleges that Dr Mogale was paid a rural allowance in
accordance with her contract of employment and concludes that t he
respondent’s conduct of terminating the rural allowance thus contravenes Dr
Mogale’s contract of employment . These are , in essence, the alleged facts
that seek to invoke this Court’s jurisdiction. In my view, there can be little
2 Supra at para 74.
3 2008 (5) SA 339 (SCA); [2008] ZASCA 78 at para 29.
2 Supra at para 74.
3 2008 (5) SA 339 (SCA); [2008] ZASCA 78 at para 29.
4 [2009] ZASCA 69; 2010 (1) SA 62 (SCA).
8
doubt that the case as pleaded by SAMA in effect has nothing to do with the
cause of action based on breach of contract. On the facts as pleaded, there
are a number of reasons for this, which I elaborate on below.
[25] Firstly, SAMA has made no reference whatsoever to the terms of Dr Mogale’s
contract of employment. SAMA has referred to no provisions in the said
contract, let alone provisions that could have been breached. The attachment
of Dr Mogale’s appointment letter and her payslip is not of assistance either.
The aforesaid documents do nothing more than to confirm Dr Mogale’s
employment by the respondent and the breakdown of her salary.
[26] In Mbanjwa v Minister of the National Department of Public Works and others5
the Court held as follows, which equally applies to the applicant in casu:
‘Where a claim is predicated on a contract, a party relying on such a contract
must state whether the contract is in writing or oral; when, where and by
whom it was concluded and if the contract is in writing a true copy thereof or
the part relied on in the pleading shall be annexed to the pleading. A contract
of employment being a contract, in a claim in terms of s 77(3) a party must
plead in accordance with rule 18(6) of the Uniform Rules. The applicant did
not plead accordingly…’
[27] In order to sustain a claim based on breach of a contract of employment more
is required, than merely asserting that an employee was paid a certain benefit
in terms of a contract of employment.
[28] Secondly, the substance of SAMA’s complaint, when considered holistically,
is the respondent’s failure to pay the rural allowance regulated by the
collective agreement, Resolution 2 of 2004. SAMA in fortifying its complaint
then pleads the listed objectives of the Resolution , which include but are not
limited to:
28.1. Effect payment in respect of rural allowance in terms of the 13 ISRD
(Rural Nodes) identified as priority; and
5 (2021) 42 ILJ 2244 (LC); [2021] ZALCJHB 132 at para 15.
9
28.2. Allow for the Provincial Heads of Health to determine and designate
the other inhospitable health institutions with definite recruitment and
retention needs, dependent on the availability of funds.
[29] SAMA avers that Dr Mogale was paid the rural allowance due to the fact that
her workplace was demarcated as rural and/or inhospitable by the North West
and/or Limpopo province as per the Resolution. Pertinently SAMA pleads that
this was the basis upon which Dr Mogale received the rural allowance. SAMA
further states that the collective agreement is binding on the respondent, itself
and by extension Dr Mogale.
[30] Subsequent to the conclusion of the Resolution , SAMA claims that the
National Government and/or State effected changes to certain provincial
boundaries, the aforesaid resulted in Dr Mogale’s workplace which previously
fell under the Northwest and/or Limpopo province incorporated into the
Department of Health, Gauteng Province. In April 2014, Dr Mogale’s rural
allowance was terminated by the respondent without notice. The reasoning of
the respondent in this regard, so SAMA alleges, is that Dr Mogale’s workplace
had fallen under the Gauteng province. The Gauteng Province is omitted on
the list of inhospitable and rural areas in the Resolution.
[31] The pinnacle of SAMA’s complaint is located in paragraphs 31 and 32 of the
founding affidavit, wherein it is pleaded, “I have been advised that the benefit
of rural allowance is attached to me in terms of section 197 of the LRA. As
such, it ought to have been attached to me when I was being incorporated
into Gauteng Province . I thus submit that the conduct of respondent was in
contravention of my contract of employment, read together with the provisions
of the Resolution which is binding on the respondent and SAMA -myself, by
extension”.
[32] Applying the substance over form principle, I have no hesitation in finding that
the real issue in dispute is the respondent’s breach and/or non- compliance
the real issue in dispute is the respondent’s breach and/or non- compliance
with the provisions of the Resolution, and not, as SAMA want to characterise
the dispute, a breach of Dr Mogale’s contract of employment.
10
[33] The dispute is clearly not about Dr Mogale not getting the rural allowance,
which was contractually agreed between her and the respondent. The basis
on which Dr Mogale was paid the rural allowance emanates from the
provisions of the Resolution. The alleged breach by the respondent equally
follows from the Resolution . The real dispute in casu is whether the
respondent, in terminating the rural allowance, breached the provisions of the
Resolution. The aforesaid enquiry requires proper interpretation of the
Resolution.
[34] But even accepting for the purposes of argument that the terms of the
Resolution were incorporated into Dr Mogale’s contract of employment for
purposes of approaching that court in terms of s 77(3) of the BCEA, the
aforesaid practice was criticised and expressly by the Labour Appeal Court in
Ekurhuleni Metropolitan Municipality v SA Municipality Workers Union on
behalf of Members6 on the following basis:
‘This argument, in my view, which is made to overcome the difficulty which
the jurisdictional point presents to the respondent, ignores the primacy of
collective agreements under the LRA. One could equally argue that the court
a quo was interpreting the main agreement and that the dispute was about
the main agreement which was the source of the relevant clauses. For this
argument, respondent’s counsel purportedly relied on s 23(3) of the LRA,
which provides: ‘Where applicable, a collective agreement varies any contract
of employment between an employee and employer who are both bound by
the collective agreement. ’ That provision is likely to apply to all collective
agreements where reciprocal rights and obligations of employers and
employees are dealt with. But it is not correct that if clauses in the collective
agreement, by which the employment contract is varied, are interpreted, that
it is in fact an interpretation of the employment contract and not of the
collective agreement. The interpretation is certainly of the relevant clauses in
collective agreement. The interpretation is certainly of the relevant clauses in
the collective agreement and by implication, also the relevant clauses in the
employment contract.
Collective agreements are to be accorded primacy. In National Bargaining
Council for the Road Freight Industry & another v Carlbank Mining Contracts
6 (2015) 36 ILJ 624 (LAC); [2014] ZALAC 61 at paras 25 and 26.
11
(Pty) Ltd & another, this court held that the purpose of s 199 of the LRA, read
together with s 23(3) of the LRA, is to advance the primary object of the LRA,
namely the promotion of collective bargaining at sectoral level and giving
primacy to the collective agreements above individual contracts of
employment. Section 199 provides, inter alia, in essence that contracts of
employment may not disregard or waive collective agreements.
The fact that it was agreed that the rights, duties and obligations pertaining to
full-time shop stewards were to be reduced to a collective agreement at
Bargaining Council or sectoral level is indicative of the intention to create and
maintain uniformity in the sector in respect of those matters. The meaning to
be given to each clause in the collective agreement was therefore also clearly
intended to be uniform throughout the sector and at both Bargaining Council
and plant levels. To distinguish between the collective agreement and the
individual contracts of employment in respect of those aspects when
interpreting the relevant clauses, could be subversive, firstly, because of the
very intention of maintaining uniformity, because there is a possibility that
different meanings could be given to the very same clauses by the different
parties to the agreement if they were allowed definitively to interpret the
clauses at plant level. Such an approach would also weaken the collective
agreement to the point of rendering it ineffective. Further, such an approach
would be inconsistent with one of the other main objectives of the LRA,
namely, to ensure orderly and effective collective bargaining. The said
objective of the LRA and the collective agreement can only be maintained if
the collective agreement, i.e. the main agreement, itself is interpreted.’
[35] Section 24 (1) of the LRA provides that all collective agreements are required
to provide for a procedure to resolve any dispute about the interpretation and
to provide for a procedure to resolve any dispute about the interpretation and
application of the collective agreement through conciliation, and if the dispute
remains unresolved, through arbitration. Clause 5 of the Resolution in casu
provides for such a procedure. It provides as follows: “ This agreement will be
binding on the Parties and any disputes about its interpretation or application
shall be dealt with according to the dispute Resolution procedure of the PH &
WSBC”.
[36] The bargaining council is empowered in terms of s 33A of the LRA, to enforce
a collective agreement, which it has concluded. The dispute R esolution
12
procedure provided for in clause 5 of the Resolution seeks to do precisely
that. It is binding on both the SAMA, by extension Dr Mogale and the
respondent, and it provides each of them with a remedy which they are
obliged to pursue in the event of non-compliance by the other party.
Conclusion
[37] In summary, the respondent’s objection in limine of jurisdiction must be
upheld on the following basis:
37.1. SAMA failed to plead its claim of breach of contract of in accordance
with rule 18(6) of the Uniform Rules.
37.2. I therefore conclude that, upon a proper interpretation of the pleadings
as they stand, SAMA’s case concerns a breach of the Resolution and
not a breach of the contract of employment. The purported reliance on
the contract of employment was a clearly contrived stratagem intended
to escape the prerequisites of the applicable dispute resolution
procedures.
[38] In the circumstances, the order is as follows:
Order
1. The application is dismissed.
2. There is no order as to costs.
_______________________
M Seti-Baza
Acting Judge of the Labour Court of South Africa
13
Appearances:
For the Applicant: Adv T Mosiliki
Instructed by: Madiba Mostai Masitenyane & Githiri Attorneys
For the Respondents: Adv L Monnakgotla
Instructed by The State Attorney