Koto v MEC for Rural Development and Agrarian Reform and Another (P21/24) [2024] ZALCPE 25 (5 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case No: P21/24

In the matter between:

SOLOMON MBUYISELO KOTO

Applicant

And

MEC FOR RURAL DEVELOPMENT

AND AGRARIAN REFORM First

Respondent

HOD DEPARTMENT OF RURAL DEVELOPMENT

AND AGRARIAN REFORM

Second Respondent

Heard: 19 June 2024

Delivered: 05 July 2024

Jurisdiction of the Labour Court – Limitations of the Labour Court – Role of Pleadings – Implications of Pleadings – Unlawful as opposed to unfair dismissals – Interpretation of Section 157(1) of the LRA.

JUDGMENT

THYS, AJ

[1] This matter stood unopposed and the applicant presented the following relevant evidence:

1.1 He worked for the Department of Rural Development and Agrarian Reform (as an Assistant Director: Economics), but the Department terminated his employment – due to alleged ‘misconduct’.

1.2 He claims that the termination was ‘unlawful’ and null/void because the disciplinary prescripts under which he faced discipline had not been officially established when the alleged ‘misconduct’ occurred.

1.3 The applicant argues that this assertion is irrefutable because the Department acknowledged it – in written communication from the Chief of Staff, Mr. Madikizela.

[2] These ‘pleaded’ facts are an important consideration because the Constitutional Court in Gcaba v Minister for Safety and Security and Others[1] through Van der Westhuizen J held:

“… (T)he 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. 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 applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim…”

[3] The Constitutional Court also in SA Transport and Allied Workers Union and Another v Garvas and Others[2] held that:

“Holding parties to pleadings is not pedantry. It is an integral part of the principle of legal certainty which is an element of the rule of law …”[3]

[4] The Labour Court in Leboea and others v LSG Sky Chefs (Pty) Ltd[4] (in coming to its conclusions) stated, at paragraph 8, that;

“… the applicant must be held to its notice of motion and its founding affidavit”.

[5] Undoubtedly, the applicant’s case must then be determined based on the ‘pleaded’ case – which means the evidence presented and the arguments/issues raised in the applicant’s founding papers define the scope of this application and/or demarcate the court’s jurisdiction.

[6] After careful consideration of the applicant’s case on paper (i.e. the facts and arguments put forward) I formed an initial, or in chambers, opinion that this court lacks jurisdiction to entertain the applicant’s matter.

[7] At the hearing of the matter I accordingly engaged, in debate, with Mr. Makiwane, the applicant’s legal counsel, to ascertain the court’s jurisdictional competence to adjudicate the applicant’s case. In other words, I shared my initial opinion with Mr. Makiwane and provided him a fair opportunity to dissuade me from this view point. I granted him an extended adjournment of the proceedings in the tune of eight days.[5]

[8] Mr. Makiwane seized the opportunity and when the matter re-convened he amplified his arguments and insisted that the applicant is entitled to the relief sought and, in support of this proposition, referred me to various legal authorities.[6]

[9] Despite Mr Makiwane’s vigorous arguments and the additional authorities presented, I remain unconvinced and am fortified in my view – which I consider to be unequivocally substantiated and correct.

[10] This is, among others, for the reason in Steenkamp and Others v Edcon Ltd (National Union of Metal Workers of South Africa intervening)[7] the appellants argued that their statutory dismissals were ‘unlawful’. The Constitutional Court dismissed this argument, stating that the Labour Court does not have the jurisdiction to rule on the lawfulness of such dismissals. The Constitutional Court came to this conclusion based on its appreciation of the fact that the Labour Court is a “creature of statute” – the Labour Relations Act (LRA)[8]. This, according to the Constitutional Court, means the power and specifically the jurisdiction of the Labour Court is limited to what the LRA, or at best any other law, provides.

[11] Section 157(1) of the LRA is particularly relevant here, which states that “the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.”

[12] Consequently for a termination of contract dispute to be resolved by the Labour Court, the applicant must point to a specific ‘provision of the LRA’, or ‘any other law’, that applies to his case.

[13] A specific ‘provision’ (in the case of termination of an employment contract) means a stipulation (section) in the LRA which provides for dismissals –

which then triggers the Labour Court’s (section 157(1)) jurisdiction. Any ‘other law’ (in the same context) may include (or relates to) a termination being challenged by section 77(3) of the Basic Conditions of Employment

Act.[9]

[14] In this case, the applicant does not rely on a specific provision of the BCEA to establish the court’s jurisdiction. To be more precise, the applicant does not invoke section 77(3) of the BCEA.

[15] The significance of relying on section 77(3) lies in its expansion of the Labour Court’s jurisdiction. According to the Amalungelo Workers’ Union v Philip Morris South Africa (Pty) Ltd and another[10] case, this section extends the Labour Court’s reach to cover disputes arising from employment contracts, even if they are not regulated by the BCEA. The rationale behind this expansion is that section 77(1) of the BCEA grants the Labour Court jurisdiction only over claims governed by the BCEA.

[16] The LRA does not explicitly stipulate that contractual claims in a labour context fall under its purview.

[17] Consequently, section 77(3) should be interpreted to mean that if a claim is based on a right created by the terms of an employment contract, it may be adjudicated by the Labour Court. This is significant because the Labour Court does have jurisdiction, thanks to section 77(3), to address contractual remedies in cases of contract breaches or unlawful terminations. Simply put, the Labour Court’s jurisdiction over unlawful dismissals is linked specifically to the BCEA.

[18] The applicant did not take this route. By not invoking section 77(3), the applicant deliberately chose not to trigger the court’s jurisdiction via the BCEA.

[19] I pause to mention that the choice between the LRA and BCEA has implications: if a matter is brought under the LRA, only the remedies outlined in the LRA apply, whereas reliance on the BCEA leads solely to contractual remedies.

[20] Be that as it may the applicant’s alternative or option is to invoke a specific section in the LRA to trigger the court’s jurisdiction.

[21] Given that the applicant’s claim contains traces of ‘mis.conduct’, the relevant sections of the LRA to trigger jurisdiction include 185(a), 188(1)(a) and (b), 191(1)(a)(i) or (ii), as well as 193(1)(a)

to (c).

[22] These sections specifically outline procedures and remedies for “unfair dismissal disputes”. The contemplated procedures are the CCMA or bargaining councils. The key consideration should therefore be whether the alleged conduct being challenged was procedurally or substantively “fair”, rather than whether it was unlawful.

[23] The concept of ‘unlawful’ statutory dismissals is, as a result, inconsistent with the objectives of the LRA, especially section 157(1) – which grants jurisdiction to the court – apart from section 77(3).

[24] The cause of action in the present instance clearly pertains to the ‘unlawfulness’ of a statutory dismissal and consequently based solely on this ground, the court lacks jurisdiction to entertain the matter – i.e. based on abovementioned case law and a proper interpretation and application of the LRA, and particularly section 157(1) thereof and section 77(3) of the BCEA.

[25] As a result, the Labour Court lacks jurisdiction to consider a cause of action that falls outside the dispute settlement mechanisms established or provided for by the LRA. Specifically, its jurisdiction does not extend to resolving the unlawfulness of statutory dismissals.

[26] This interpretation and application cannot be incorrect because this court has since consistently, and correctly so, adopted the approach outlined in the Steenkamp and Others v Edcon Ltd case.

[27] In the Botes v City of Joburg Property Company SOC Ltd and another[11] case, Moshoana J, as an example, this court explicitly stated that it would be inappropriate for it to assume jurisdiction where the LRA mandates that alleged unfair dismissal disputes must be determined by the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining councils – i.e. under section 191. The Botes v City of Joburg made it abundantly clear that the Labour Court lacks jurisdiction over statutory claims of unlawfulness, as such matters fall outside its scope.

[28] In Jabu Brian Njomane v King Sabata Dalindyebo Municipality[12] van Niekerk J (as he then was) concluded that if a remedy is sought under the LRA, the applicant must categorize the alleged unlawfulness

as unfairness.

[29] The fact that the applicant, in his papers, refers to section 158(1)(h), of the LRA, does not come to his aid because having the ‘power’ to act (competence) and having ‘jurisdiction’ over a specific matter are distinct in legal proceedings. Power, in terms of section 158(1), refers to a court’s authority to perform certain functions/actions, such as hearing cases, or making decisions

– it is inherent or statutory powers. Jurisdiction, in terms of section 157(1) or on the other hand, defines the scope of a court’s authority to hear and decide specific types of cases.

[30] Therefore my opinion is that while a court may have the ‘power’ to act, it must also have ‘jurisdiction’ over the specific matter – to hear and decide it. In other words, the Labour Court’s ‘review power’ (under section 158(1)(h)) does not automatically confer ‘jurisdiction’ (intended by section 157(1)) upon it to entertain a matter. The court must ascertain the true nature of the dispute and, once it

becomes evident from the evidence or papers, decide the matter accordingly.

[31] The cause of action or true nature of the dispute, in the present instance clearly pertains to an ‘unlawful dismissal’ which is unconnected to the BCEA and/or contract. Consequently based on the abovementioned analysis, the court lacks jurisdiction to entertain the matter.

[32] In addition to the issue of unlawfulness, I observed various other defects in the applicant’s application (which was also placed before Mr. Makiwane during our aforementioned engagement) but based on my earlier conclusions I find it unnecessary to address these issues.

[33] All in all the applicant’s dispute/cause of action falls outside the scope of the LRA, or any other law.

[34] This court as a result (and/or for all the above-mentioned reasons) does not have the authority to decide the matter.

[35] Consequently, the following order is made:

Order

1. This application is dismissed.

Mark Thys

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. M Makiwane of M Dukada Inc. (in association with Makiwane

Attorneys Inc.).

For the Respondent: None.

[1] [2009] 12 BLLR 1145 (CC) at para 75.

[2] (2012) 33 ILJ 1593 (CC).

[3] See also – My Vote Counts NPC v Speaker of the National Assembly 2016 (1) 132 (CC), at para 132 and Chirwa v Transnet Ltd 2010 (1) SA 238 (CC).

[4] [2013] ZALCJHB 154 (4 July 2013).

[5] From 11 to 19 June 2024.

[6] The authorities mainly refer to the issue of the late delivery of the applicant’s review – which concentrated on only one aspect of my concerns.

[7] (2016) 37 ILJ 564 (CC).

[8] No. 66 of 1995, as amended.

[9] No. 75 of 1997, as amended.

[10] [2020] 3 BLLR 225 (CC).

[11] [2021] 2 BLLR 181 (LC).

[12] Unreported. Case number P30/20. Delivered: 11 December 2020.