Gida v Unitrans Fuels And Chemicals (Pty) Ltd and Another (JS893/13) [2014] ZALCJHB 379 (3 October 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No: JS 893/13

In the matter between:

JAMES THAMSANQA GIDA

Applicant

and

UNITRANS FUELS AND CHEMICALS (PTY) LTD First Respondent

UNITRANS PROVIDENT FUND Second Respondent

Heard: 7 August 2014

Delivered: 3 October 2014

Summary: Application for declarator - challenge to court’s jurisdiction; application struck from roll for court’s lack of jurisdiction

MOOKI, AJ

[1] The applicant seeks declaratory relief that:

1.1. The first respondent employed the applicant in 1981;

1.2. The second respondent is to calculate benefits due to the applicant with effect from 1981; and

1.3. The first respondent be ordered to pay the applicant the amount of R88 267.20.

[2] The first respondent denies that the court has jurisdiction; with particular emphasis on the relief sought in paragraphs 2 and 3 of the statement of claim. The first respondent has pleaded that it is unnecessary for the court to grant the relief sought in paragraph 1 because it is common cause in the pleadings that the first respondent employed the applicant in 1981.

[3] The first respondent disputes that the court has jurisdiction on account of the relief the nature of the relief sought by the

applicant in that such relief does not fall within the remit of this court. In particular, the relief sought, according to the first respondent, is not based on an employment contract between the applicant and the first respondent.

[4] The court must first determine whether it has jurisdiction whenever a litigant disputes such jurisdiction. Such jurisdiction is determined with reference to the applicant’s pleaded case.

[5] The essence of the applicant’s pleaded case is that:

5.1 The first respondent employed him in 1981;

5.2 The employment relationship terminated on 17 October 2011;

5.3 The first respondent gave the second respondent information recording that the applicant started working in 1996;

5.4 The second respondent relied on such information to calculate benefits that were due to the applicant;

5.5 The second respondent miscalculated the benefits due to the applicant on account of information given to the second respondent by the first respondent;

5.6 The applicant “suffered monetary benefit (sic) in the amount of R88,267.20” “as a result” of the conduct of the first respondent;

5.7 The applicant seeks declaratory relief that:

5.7.1 The first respondent employed the applicant in 1981;

5.7.2 His provident or pension benefits should be calculated from 1981;

5.7.3 The first respondent pay the applicant R88 267.20.

[6] The first respondent admits that it employed the applicant in 1981 and that the employment relationship terminated on 17 October 2011. It denies the rest of the allegations by the applicant.

[7] There is no need for the court to deal with the relief sought in paragraph 1 of the statement of claim. It is common cause on the pleadings that the first respondent employed the applicant in 1981. The court does not make orders that are academic in nature.

[8] A jurisdictional challenge is considered with reference to the pleadings. The merits are not taken into account.[1] The applicant’s pleaded case is not founded on a cognisable cause of action. The applicant seeks relief on the basis that he suffered loss because the first respondent gave the second respondent incorrect information. The claim is delictual in nature. This court does not have jurisdiction to consider the claim as formulated by the applicant.

[9] The relief sought in paragraph 2 in the prayer to the statement of claim is inextricably linked to the relief sought in paragraph 3 of that statement. The court equally has no jurisdiction to grant such declaratory relief on the applicant’s pleaded case.

[10] This matter came to court by way of trial proceedings. I should make the following remarks about the conduct of the applicant’s

representative in this matter. Counsel was briefed to appear for the applicant, and did appear on the first day of the scheduled trial. The matter did not commence at the usual hour. That was because counsel for the applicant had asked for an indulgence to clarify certain aspects before the matter could proceed. He had indicated beforehand that the matter was otherwise ready to proceed.

[11] The court was surprised when counsel for the applicant, when the matter was called, indicated to the court that he was not ready to proceed. He told the court that he was briefed to appear on an unopposed motion, whereas the matter was a trial. He further told the court that he only established this fact on the afternoon of the previous day and that he could not get hold of his instructing

attorney to take instructions. He then therefore sought a postponement.

[12] The court indicated that it was not inclined to grant the postponement. The court further requested counsel for the applicant

to call his attorney to come to court. The court wanted to establish what in fact transpired and why a postponement was being sought. The matter stood down for the attorney to attend in court, who did attend in court.

[13] Counsel for the applicant told the court, when the matter resumed, that cost were being tendered for the postponement. The court enquired as to who would be liable for such costs. Counsel for the applicant told the court that the applicant will, in the usual fashion, be liable for such costs. I enquired why the client should be saddled with costs when the client had briefed both an attorney and counsel to represent him and then a postponement was sought on the basis that counsel did not understand his brief. The attorney for the applicant ultimately tendered to pay the costs. He also took the brief away from his counsel. All this took place in open court.

[14] I then indicated to the parties that the matter will stand down to the next day. This was to allow the parties to argue to the point on jurisdiction, which was argued by the applicant’s attorney.

[15] The second respondent succeeds in its jurisdictional challenge. I make the following order:

15.1 The court has no jurisdiction to consider the relief sought in paragraphs 2 and 3 of the relief set out in the applicant’s statement of claim.

15.2 The application is struck from the roll.

15.3 The applicant is ordered to pay costs, excluding costs incurred on the first day of the scheduled hearing; which costs shall be borne by the attorneys representing the applicant.

15.4 Counsel who appeared for the applicant may not mark a fee for his appearance on the first day of the scheduled hearing.

____________

O Mooki

Judge of the Labour Court (Acting)

Appearances

Applicant:

Mr Shongwe (Attorney- Shongwe Attorneys)

Second Respondent: S Tilly

Instructed by: Cliffe Dekker Hofmeyer Inc.

[1] Gcaba v Minister of Safety and Security and Others [2009] BLLR 1145 (CC) (7 October 2009), para 75.