Swanepoel v Kievieskroon Country Estate (J2525/07) [2009] ZALCJHB 86 (29 April 2009)

Swanepoel v Kievieskroon Country Estate (J2525/07) [2009] ZALCJHB 86 (29 April 2009)

The court found that section 42 of the BCEA does not impose an automatic obligation on the employer to issue a certificate of service unless requested by the employee. The applicant's attorneys made their first demand for the certificate on 17 October 2007, and the respondent's attorneys replied that the certificate would be provided upon the personnel manager's return. The court held that the applicant should have followed up with the respondent rather than immediately instituting proceedings, as there was no evidence of a wilful refusal to comply. The court expressed doubt about its jurisdiction under section 77(3) of the BCEA but proceeded on the assumption that jurisdiction existed....

Citation
[2009] ZALCJHB 86
Parties
Applicant: Swanepoel; Respondent: Kievietskroon Country Estate
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
29 April 2009
Case Number
J2525/07
Procedural Posture
Application / Written Reasons Following Order
Outcome
Application granted in part; respondent directed to issue certificate of service, no order as to costs.
Judges
Todd
Legal Topics
Certificate of Service, Basic Conditions of Employment Act, Jurisdiction of Labour Court, Costs Award, Enforcement Mechanisms
Labour Law Certificate of Service Basic Conditions of Employment Act Jurisdiction of Labour Court Costs Award Enforcement Mechanisms

Case Brief

Summary, issues, holding and outcome

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Parties

Swanepoel

Applicant

Kievietskroon Country Estate

Respondent

Procedural Posture

Application / Written Reasons Following Order

Legal Issues

  1. 1 Whether the respondent was obliged to issue a certificate of service to the applicant under section 42 of the BCEA.
  2. 2 Whether the applicant was justified in instituting proceedings in the Labour Court to compel the respondent to issue the certificate.
  3. 3 Whether the Labour Court had jurisdiction to entertain the application under section 77(3) of the BCEA.

Ratio Decidendi

The court found that section 42 of the BCEA does not impose an automatic obligation on the employer to issue a certificate of service unless requested by the employee. The applicant's attorneys made their first demand for the certificate on 17 October 2007, and the respondent's attorneys replied that the certificate would be provided upon the personnel manager's return. The court held that the applicant should have followed up with the respondent rather than immediately instituting proceedings, as there was no evidence of a wilful refusal to comply. The court expressed doubt about its jurisdiction under section 77(3) of the BCEA but proceeded on the assumption that jurisdiction existed....

Court Disposition

Application granted in part; respondent directed to issue certificate of service, no order as to costs.

Orders

  • The respondent is directed to send a certificate of service, reflecting 30 May 2007 as the last date of the applicant’s employment, to the applicant’s attorneys of record within 7 days of the date of this order.
  • There is no order as to costs.