Pursuing contractual claims in the Labour Court


IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG

CASE NO: J1539/10
In the case between:

ENGELBRECHT JACQUELINE APPLICANT

And

ABJATERSKOP HOTEL /
KRANZ HOTEL RESPONDENT

FILING SHEET

BE PLEASED TO TAKE NOTICE THAT the Applicant presents the following documents for filing:-

1. APPLICANT’S HEADS OF ARGUMENT

Dated at POTCHEFSTROOM this ______ day of SEPTEMBER 2011.

____________________________
JANSENS ATTORNEYS
BRAM FISCHER HOUSE
4 PETER MOKABA AVENUE
POTCHEFSTROOM
P O Box 1000
Potchefstroom 2520
Tel: (018) 293-1011
Fax: (018) 293-1411
Ref: jhj/AD/E0043

TO:

THE REGISTRAR OF THE ABOVE HONOURABLE COURT
6TH FLOOR
ARBOR SQUARE BUILDING
86 JUTA STREET
BRAAMFONTEIN
PRIVATE BAG X52
2017
TEL: (011) 359-5700
FAX: (011) 403-9327

IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG

CASE NO: J1539/10
In the case between:

EMGELBRECHT JACQUELINE APPLICANT

And

ABJATERSKOP HOTEL /
KRANZ HOTEL RESPONDENT

HEADS OF ARGUMENT

1.

JURISDICTION OF LABOUR COURT (WITH SPECIFIC REFERENCE TO THE BCEA)
1.1

SECTION 77(1) OF THE BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997

1.1.1

The Labour Court’s jurisdiction is inter alia found in Section 77 of the BCEA. Section 77 (1) provides the following:

“subject to the constitution and the jurisdiction of the Labour Appeal Court, and except were this act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this act, except in respect of an offense specified in sections 43, 44, 46, 48, 90 and 92”.

1.1.2

In order to consider what the Legislator meant by the “exclusive” jurisdiction of the Labour Court one has to have regard to the meaning of the word “exclusive” and also the interpretation thereof in previous judgments. It is submitted that it is important to take cognicance of the aforementioned and as dealt with herein below:

The meaning of “exclusive” – “Not divided or shared by others”; “they have the exclusive use of the madine”

The Court’s interpretation of the meaning of “exclusive”, with reference to the Labour Court’s jurisdiction has recently been the subject of a tremendous amount of judgments dealing with a similar question, specifically whether the High Court’s jurisdiction is ousted as a result of a proper construction of the Labour Relations Act 66 of 1995 and specifically as a result of the Labour Court’s exclusive jurisdiction as provided for in section 157 (1) of the LRA. This question was again raised and addressed in the recent constitutional matter of Fredericks & Others v MEC responsible for education and training in the Eastern Cape Province & Others. The relevance of this matter is the following:-

The case concerns the jurisdiction of the High Court to determine certain complaints, which includes constitutional issues, arising out of the employment relationship. The Court a quo found that it did not have jurisdiction in the matter as its jurisdiction to consider the claims was ousted by the relevant provisions of the LRA. The Applicants accordingly approached the Constitutional Court for leave to appeal.

In deciding the matter, the Court relied, inter alia, on the provisions of section 157 (1) of the LRA, which provides as follows:

“subject to the constitution and section 173, and except where this act provide otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that else where in terms of this act or in terms of any other law are to be determined by the Labour Court”.

The Court also had due reference to the matter of Fedlife Insurance Ltd vs Wolfaartd. The starting point for enquiry into the interpretation of section 157 must be section 157 (1) which provides the Labour Court with exclusive jurisdiction over all matters that “are to be determined” in terms of the LRA or other legislation, which is to be determined by the Labour Court.

The Court furthermore found that “to the extend that exclusive jurisdiction over a matter is conferred upon the Labour Court by section 157, or any other provision of the LRA or any other legislation, the jurisdiction of the High Court to adjudicate such matters is ousted”.

The Court further found that “deciding which matters fall within the exclusive jurisdiction of the Labour Court, requires an examination of the LRA to see which matters fall ‘to be determined’ by the Labour Court”. It is clear that the overall scheme of the LRA does not confer a general jurisdiction or the Labour Court to deal with all disputes arising from employment. As Nuget J A held in Fedlife insurance Ltd: “s157 (1) does not purport to confer exclusive jurisdiction upon the Labour Court generally in relation to matters concerning the relationship between employers and employees”.

In respect of the aforementioned, the Court made the following important finding: “Instead the act provides for a careful and complex provision of responsibilities between bargaining councils, the CCMA, the Labour Court and the Labour Appeal Court. It is also important to note that generally the Act enquires the dispute be first referred to conciliation or mediation process before being referred to an agency for judication. Some disputes are resolved by conciliations, followed by arbitration that may be followed by review in the Labour Court and some disputes are resolved by conciliation, followed by adjudication in the Labour Court. So, for example, disputes about organizational rights, the interpretation of collective agreements and many disputes concerning unfair dismissals are to be referred to conciliations by the CCMA and then to arbitration. On the other hand, disputes about the rights of freedom of association, and certain specific disputes concerning unfair dismissal must first be conciliated and then referred to ajudication in the Labour Court”.

In the essence the Court found that there is no exlusive jurisdiction afforded to the Labour Court in employment matters and that the jurisdiction of the High Court will only be ousted in respect of matters that “are to be determined” by the Labour Court in terms of the act.

1.1.3

It is therefore submitted that the aforementioned interpretation, specifically in respect of the Labour Court’s “exclusive” jurisdiction as well as the concurrent jurisdiction between the Labour Court and the High Court, correctly reflects the Legislator’s intention as expressed by section 77 (1) and (3) of the BCEA.

1.1.4

Section 77 (1) of the BCEA is read with section 157 (1) of the LRA in order to fully understand the Labour Court’s jurisdiction.

1.1.5

This was in fact found by the Labour Appeal Court in Langeveldt v Vryburg Transitional Local Council & Others where the Labour Appeal Court comprehensively dealt with the issue of jurisdiction. Zondo JP noted: “The provisions of sec 77 (1) of the Basic Conditions of Employment Act, 1997 (Act No75 of 1997) (“the BCEA”) mirrored the provisions of sec 157 (1) of the act”. In the aforementioned judgment the Court gave the following exposition in respect of jurisdiction, and explained that there are employment related disputes or matters in which:

1.1.5.1 Only the Labour Court has jurisdiction to deal with;

1.1.5.2 Only the High Court has jurisdiction to deal with;

1.1.5.3 Both the Labour Court and the High Court’s have jurisdiction to deal with;

The Commission for Conciliation, Mediation and Arbitration (“the CCMA”), Bargaining Councils, the Labour Court, the High Court and the Constitutional Court have jurisdiction to deal with one way or another.

1.1.6

The Court furthermore confirmed that section 158 (1) of the LRA provides a list of powers of the Labour Court. This section includes the power to grant interdicts, urgent interim relief, declatory orders, compensation and damages in circumstances contemplated by the Act as well as orders compelling compliance with provisions of the Act ect.

1.1.7

The Court furthermore raised a concern in respect of the overlapping jurisdiction between the High Court and the Labour Court and found that this constitutes an invitation to forum shopping.

1.1.8

However, in light of the aforementioned, Zondo JP made the following important remark: “There should only be a single Court which has jurisdiction in respect of all employment related matters. If such disputes are required to be dealt with by Superior Courts of first instance, the appropriate Court to deal with it is the Labour Court”.

1.1.9

Whilst the Labour Court’s jurisdiction in terms of section 77 (1) of the BCEA seems quite simple in light of the aforementioned judgments, another question comes to mind, namely the powers of the Labour Court to grant relief in terms of section 77 (1). This question was raised the a recent Labour Court matter of Mayo vs Bull Brand Foods (pty) Ltd. The Mayo judgment is dealt with separately, as directed by the Judge President and in terms of the notice received from the Registrar of the above Honourable Court dated 5 March 2010, herein below.
1.1.10

It is therefore respectfully submitted that the Labour Court’s powers, to grant relief in terms of section 77 (1) of the BCEA, is not limited to the powers of the Labour Court as determined by section 77 A of the BCEA, but also extends to its powers as determined by section 158 of the LRA when same is read with section 157 of the LRA.

2. THE MAYO JUDGMENT

2.1

In the aforementioned matter the Court raised and addressed, in essence, the following issues:

The question as to whether the Labour Court has the power to enforce the provisions of the BCEA as an agent of first instance;

Whether the Labour Court, as a result of the wording of section 77 (1), has the jurisdiction to deal with matters, in the first instance, where the act makes also provision for the same to be dealt with by functionaries;

2.2

In determining the aforementioned the Court made the following findings:

That the provisions of section 77 (1) do no more than confer a residual exclusive jurisdiction on the Labour Court to deal with those matters that the Act requires to be dealt with by the Labour Court;

The wording of section 77 (1) does not confer jurisdiction on the Labour Court to deal with matters that must be dealt with, in the first instance, by duly appointed functionaries;

That the Applicant’s claim, which was brought in terms of section 77 (1) of the BCEA, is misconceived in the absence of any provision of the BCEA that confers jurisdiction to the Labour Court to enforce the provisions of the act directly and as an agent of the first instance;

That the BCEA does not extend to the Labour Court the functions that are reserved for the Labour Inspectorate and that it does not contemplate that the Labour Court may grant orders that would be effectively amount to compliance orders contemplated by section 69 of the BCEA;

That litigation initiated under the circumstances, as present in that matter and which is similar to the current matter, might be intended solely to run up legal costs that might be recovered from the employer party.

2.3

It is respectfully submitted that the above Honourable Court erred in coming to the aforementioned conclusions and making the finding in the abovementioned matter. The reasons therefore are as follows, with the exception to repeat what have been stated herein above:

The question whether this Court has the power to enforce the provisions of the BCEA as a forum of first instance – The Court’s jurisdiction in terms of section 77 (1) of the BCEA and in terms of section 157(1) of the LRA, as well as the Court’s powers in terms of section 77 A of the BCEA and in terms of section 158 of the LRA have been dealt with herein above. It is therefore submitted that the Labour Court does have the jurisdiction and power to enforce the provisions of the BCEA and that the Applicant’s claim therefore falls within the jurisdiction of the above Honourale Court;

The Court’s finding that the wording of section 77 (1) does not confer jurisdiction of the Court to deal with matters that must be dealt with, in the first instance, by duly appointed functionaries, to wit the Department of Labour – In considering this view, which is reflected by the Court’s finding and which in essence boils down to a interpretation of the Legislature’s intention in respect of the Labour Court’s jurisdiction as in section 77 (1), one has to have regard to the following:

The Legislature’s intention that the Labour Court shall have exclusive jurisdiction over all matters that are to be determined by the LRA or other legislation, in terms of section 157 (1) of the LRA, and as interpreted in the Fredericks matter;

In the Fedlife matter the Court, and referring to the matter of Stadsraad van Pretoria v Van Wyk, found the following: “In considering whether the 1995 Act should be construed to that effect it must be borne in mind that it is presumed that the legislature did not intend to interfere with existing law and a fortiori, not to deprive parties of existing remedies for wrongs done to them. A statute will be construed as doing so only if that appears expressly or by necessary implication”. The relevance of the aforementioned matter, which again dealt with the jurisdiction of the High Court in respect for a claim for damages for repudiation of a fixed term employment contract and whether such claim is excluded by the LRA and therefore falls within the exclusive jurisdiction of the Labour Court, it is that the Legislator, equal to not deprive parties of existing remedies, but also to do so by limiting the Court’s jurisdiction, save to expressly doing so or by necessary application”;

The Labour Court’s jurisdiction and powers, with specific reference to section 77 (1), have been dealt with and confirmed in the Langeveldt matter. The aforementioned, specifically the fact that the Legislator will only oust a Court’s jurisdiction by expressly doing so or implying the same, is in fact confirmed by section 157 (5) which expressly limits the Labour Court’s jurisdiction in respect of matters which is required to be resolved through arbitration in terms of the LRA;

If any doubt still remains, same ought to be removed by the Green Paper entitled “Policy Proposals for New Employment Standard Statute” as published in the Government Gazette of 23 February 1996. In this document it was stated:

2.3.2.4.1 That criminal proceedings are not an effective method of enforcing cases involving employment standards. That certificates, in terms of the previous BCEA, are required from the Attorney-General or Director-General to proceed in Civil Courts to enforce statutory conditions of employment. This is time-consuming and causes an unnecessary duplication of legal proceedings. Many cases involve both a failure to comply with a statutory and a contractual provision, requiring an institution of separate legal proceedings;

2.3.2.4.2 The changes made by the LRA of 1995 needs to be considered;

2.3.2.4.3 Breaches of conditions of employment contained in bargaining council agreements are enforced through mediation and arbitration rather than the criminal courts.

2.3.2.4.4 There must be a range of remedies available to encourage enforcement and compliance with employment standards. The system of enforcements must contribute to the effective operation of expectorate.

2.3.2.4.5 A successful enforcement system must ensure employers meet their administrative obligations – supplying employees with wage slips and records. An employee who does not have a wage slip is often not able to prove that he or she has been underpaid.

2.3.2.5 It was also proposed in the abovementioned document that employees should be entitled to institute claims arising out of the failure to comply with employers’ standards in the appropriate Court.

2.4

In University of the North v Franks & Others the Labour Appeal Court again considered the jurisdiction of the Labour Court and with reference to section 77 (3) of the BCEA and section 157 of the LRA. Whilst the Court, considering the issues, and mostly dealing with section 77 (3) merely touched on the issue of jurisdiction in terms of section 77 (1). It however remains that some of these findings or views are still relevant.

The following portions are of importance:

“There must be a direct relationship between the matter to be adjudicated and the employment contract. Section 4 of the BCEA incorporates the statutory basic condition into all contracts of employment (with exceptions) and therefore section 77 (3) was inacted to avoid litigation in two Courts about the same contract, eg. In respect of basic conditions of the Labour Court and in respect of other terms in the Civil Courts. All that section 77 (3) deals with is the dual claims problem. Have it been intended to do more, it would have been situated elsewhere, eg. in the LRA”.

“I deal with the Appelant’s last argument first. Parliament is not known for its logic and lucidity in draftmanship. One should not read too much into the situation of a provision if it is in it self clear. Section 77 of the BCEA is the section in the act which deals with jurisdictional aspects. Subsection (3) is certainly not out of place”.

“There is no indication that section 77 (3) of the BCEA was enacted solely to solve the so called dual claims problem. Section 77 (1), with certain exceptions, grants exclusive jurisdiction to the Labour Court “in respect of all matters in terms of this act”. The act seeks “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…”. In those matters exclusive jurisdiction is conferred. Section 77 (3) goes much wider. It expressly also deals with the employment contract which has no statutory basic conditions and thus fall outside the scope of the act. Consequently the Legislator had in mind that the Labour Court also have jurisdiction in such matters. Even if there is no deal claims problem. I short, the Labour Court do have jurisdiction in respect of all employment contracts and exclusive jurisdiction in some. But the jurisdiction is even wider. It is in respect of any matter considering a contract of employment “.

2.5

In the matter Makhanya v The University of Zululand the Supreme Court again considered the jurisdictional challenge. The Court considered the issues in contrast to the Chirwa Constitutional Court decision whilst finding that the two cases do not really differ. In deciding the matter the Court referred to the “Three unsound propositions”. It is submitted that two of these propositions are relevant and both are dealt with herein below:

2.5.1 The First Unsound Proposition: The Court has no jurisdiction because the claim is a bad claim. – The Court found that the term “jurisdiction” is used to describe the power of a Court to consider and to either uphold the dismissal claim. The Court also pointed out that it is sometimes overlooked that to dismiss a claim (“other than for lack of jurisdiction”) calls for the exercise of judicial power as much as it does to uphold the claim. The following was said: “There is no answer because the submission offence and immutable rule of logic, which is the power of a Court to answer a question (the question whether the claim is good or bad) cannot be depended upon the answer to the question. To express it in another way, its power to consider a claim cannot be depended upon whether the claim is a good claim or a bad claim. The Chief Justice, writing for the minority in Chirwa, expressed it as follows: “It seems to me axiomatic that the substantive merits of a claim cannot determine whether a Court has jurisdiction to hear it”.

2.6

The Court went further: ” I might add that if Court’s were concluded from considering claims that are out law there would be no scope for recognition for new rights and the development of law. The very progress of the law is depended on Courts having the power to consider the claims that have not been counted before. A Court cannot shy away from exercising its power to consider a claim on account of the fact that it considers that the recognition of the claim might have undesirable consequences. Its proper course in a case like that is to exercise its power to consider the claim but to decline to recognize the rights that are asserted and dismiss the claim as being bad at law. That is what occurred in Lillicrap”.

2.7

The Second Unsound Proposition: The High Court has jurisdiction to consider a claim to the enforcement of a right thwart the ascertain of the right by declining to exercise its jurisdiction – “The claim that was pursued before the CCMA was a claim to enforce the right of an employee not to be dismissed unfairly (what I have called an LRA right), which is enforceable only in a Labour forum. The claim in this case asserts for enforcement a right emanating from the common law to exact performance of a contract. It is plain that the High Courts have the power to consider claims for the enforcement of employment contracts (as does the Labour Court)”.

“The court below quoted a passage from the judgment of Ngcobo J, writing for the majority in Chirwa, which it construed to mean that Makhanya was put to an election as to which claim to enforce, and that his election as to which claim to enforce, and that his election to persue one claim, (the claim in the CCMA) meant that as a matter of ‘judicial policy’ the court could stop him from pursuing the other claim by simply declining to exercise its jurisdiction to consider the claim. Taken to its logical conclusion, the approach that the court below adopted would mean that the claim would not be capable of being adjudicated upon at all by any court, not even to be dismissed on its merits. It is to be left wandering, unresolved, in some sort of limbo, for want of a court to at least consider it, if only thereafter to dismiss it.”

“As I pointed out earlier, it is true that a litigant who has a single claim that is enforceable in two courts that have concurrent jurisdiction must necessarily make an election as to which court to use. In that respect the law specifically allows for ‘forum shopping’ by allowing the litigant that choice. But it is altogether different when a litigant has two distinct claims one of which may only be enforced in one court, and the other of which may be enforced in another court, which is how the court below applied it in this case.

“The approach taken by the court below has the effect of denying to Makhanya, as a matter of ‘judicial policy’, the ability to pursue the present claim at all, thereby thwarting the assertion of the right upon which the claim is founded. That cannot be correct, because ‘judicial policy’ to that effect would be unconstitutional.”

“It is not unknown in history for authorities to attempt to subvert the assertion of rights by the expedient of denying the holder a forum in which to assert them. For a right without a forum in which to enforce it might just as well not exist at all. The drafters of the Constitution were clearly alive to the stratagem of surreptitiously negating rights in that way, which it outlawed by guaranteeing to every person a forum in which to prosecute any legal claim and not only some of them. That guarantee is fundamental to preservation of rights”.

“Even if the court below meant only that the claim could not be asserted in the High Court but may be pursued in the Labour Court under its concurrent jurisdiction (which is not what the court had in mind), that would also be unconstitutional. The law has designated the high court as a forum for pursuit of the claim, and a litigant may not be denied access to a court that the law allows.”

“Clearly a court may not thwart the assertion of a right by denying access to a court in which to do so. It would be no answer to say that it really will not matter because the claimant has another right that is just as good. If the claimant asserts two rights – and it is not in issue in this case that he does – then both must have a forum in which to be asserted. That is what the Constitution guarantees. To the extent that the objection was upheld on that basis, the order cannot stand.”

2.8

The above Honourable Court’s founding in the Mayo matter is in direct conflict of the aforementioned and also makes no sense if one has regard to the following:

It would be ridiculous and nonsensical, on the Legislator’s side, to confer exclusive jurisdiction on the Labour Court, taking into account a person’s right to access to the Courts and employees rights to fair labour practices in terms of the constitution, with the intention that an employee may not directly approach the Labour Court to enforce basic employment rights, as contemplated in the BCEA, and as derived from the Constitution. If that was the Legislator’s intention, the Legislator would have made this clear. This is amplified by the fact that the previous act, specifically section 30 of the BCEA of 1983, required that a nolle prosequi certificate be issued by the Attorney General or a certificate by the Director General for a employee to institute action to recover any amount due to him by an employer. The fact that the Legislator has ommited this requirement from the current act confirms the Legislator’s intention to allow an employee to directly approach the above Honourable Court.

2.8.2 The fact that the LRA specifically ousts the Labour Court’s jurisdiction with reference, inter alia, to section 157 (5), and requires that certain disputes be referred to the CCMA or Bargaining Councils as a forum of the first instance, prior to the matter being dealt with by the Labour Court, whilst the BCEA contains no such requirement or limit in respect of the Labour Court’s jurisdiction and powers;

The Department of Labour not being a forum with jurisdiction and instead a Department of State with functions;

Section 70 (c) of the BCEA, which limits a labour inspector’s powers to issue a compliance order, specifically in respect of an amount payable to an employee as a result of the failure to comply with the provisions of the BCEA and where proceedings have been instituted for the recovery of the amount or, if proceedings have been instituted, those proceedings have been withdrawn;

2.8.5 Section 74 of the BCEA which determines that the Labour Court or the Arbitrator hearing an employees dispute in respect of unfair dismissals may also determine any claim for an amount that it is owning to that employee in terms of the BCEA, save in the event that a compliance order has been made for legal proceedings which have been instituted to recover the amount.

2.8.6 In the Fedlife matter it was confirmed that what section 77 (3) does, is merely to give the same residual concurrent competence to the Labour Court which the High Court possesses, something the Labour Court does not enjoy without specific statutory authority .

2.9

It therefore seems that the judgment in the Mayo matter reflects a decision of policy, rather than a matter of justice, which is in conflict with the provisions of the BCEA and also unconstitutional.

3. THE VAN ZYL V INDWE JUDGMENT

In the directive and Notice of Set Down dated 5 March 2010, received per telefax on 8 March 2010, the Applicant was advised by the Registrar of the above Honourable Court, and in terms of a directive by the Honourable Judge President, that the Applicant is to show cause, in light of the abovementioned judgment, as to why the Applicant’s application should not be dealt with in the same manner and be dismissed.
3.1

It is respectfully submitted that the aforementioned judgment is not substantively relevant to the Applicant’s current application, save for the court expressing a view in respect of applications brought in terms of Section 77(1) of the BCEA.

3.2

It is also of utmost importance to note that the abovementioned judgment is currently subject to an application for leave to appeal.

3.3

The judgment was a result of an application for rescission of an order granted by Honourable Acting Justice Cele on 27 February 2008, in terms of which it was ordered that the employer party must pay the employee party certain statutory monies as a result of an application in terms of Section 77 of the Basic Conditions of Employment Act 75 of 1997. The application for rescission of the order by Honourable Acting Justice Cele was brought on the basis that the order was erroneously sought and granted, alternatively, that the employer party had a bona fide defense and a reasonable explanation for its failure to file a notice of opposition. The Applicant’s bona fide defenses were the following:

The application was launched prematurely;
All monies due was paid on or before the due date;

There was an express agreement between the Applicant and the Respondent that the Respondent’s outstanding statutory monies would be paid on a certain date. In essence that the payment was not due when the application was launched.

3.4

It is respectfully submitted that the aforementioned, which constitutes grounds for rescission, has no bearing on the Applicant’s current application in this matter.

3.5

It is however assumed that the directive of the Judge President is relevant to two issues addressed by the court, namely:

A matter which can be regarded as an abuse of the processes of court;

The application in the Van Zyl matter being a misconceived application.

3.6

The first concern, relating to the abuse of civil process, was considered in light of the Supreme Court of Appeal’s judgment in the Philips v Botha matter .

3.7

From the Phillips matter it is clear that an abusive civil process can be defined to include the following:

That the process is employed for some purpose other than the attainment of the claim in the action and is merely an attempt to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate;

The court furthermore referred to the appellate division in the Western Assurance Co. v Coldwell’s Trustee matter. In which was stated:

“we must act on principal, and the principal is that a person ought not be harassed by vexatious litigation.”

3.8

The court furthermore referred to another two matters and it is submitted that these matters are of extreme importance in considering as to whether conduct constitutes an abuse of process.

3.9

In Ramsay N.O. and Others v. Maarman N.O. and Another it was said that the court has to have regard to the circumstances of each case in determining whether conduct constitutes abuse.

3.10

In Hudson v Hudson and Another it was confirmed that the court’s power, exercised in respect of its duty to prevent an abuse, should be exercised with great caution and only in a clear case.

3.11

It is respectfully submitted, that the Applicant’s application in this matter before court, cannot be regarded as an abuse of this court’s processes specifically if one has regard to the aforementioned judgments and the circumstances of this matter. In this respect the following is submitted:

The Applicant is entitled to the relief it seeks in terms of Section 77(1) and (3) of the BCEA.

The Respondent’s conduct in not complying with the Applicant’s contract of employment, read with Section 4 of the BCEA, and the Respondent’s conduct being unlawful in not complying with the Basic Conditions of Employment as set out in the BCEA;

The Applicant’s sole intention, in respect of the bringing of this application, is to obtain the relief it seeks as anything further would not serve any purpose to the Applicant;

The Applicant would not have approached its attorneys of record if it was not the Applicant’s sole intention to obtain the relief it seeks and / or if the Applicant had any trust and believe in the enforcement functions of the Department of Labour;

The Applicant has a constitutional right in respect of fair labour practices and may protect and exercise that right by approaching this court in terms of the BCEA and / or the constitution;

The Applicant’s claim for a punitive cost order cannot be construed as anything else than an attempt to determine the Applicant’s matter in finality in a court and protect the Applicant financially in this regard. The mere factor that the Respondent acted unlawfully and in contravention of the BCEA, continuously and in an contemptuous manner, justifies an adverse cost order;

The issues which the court considered in the Van Zyl matter, in order to determine whether there was an abuse, are not present in this matter and can therefore not be applied;

The fact that the Applicant’s legal representative, Jansens Incorporated, mostly represents Applicants in these type of applications are irrelevant. Jansens Incorporated is a firm specializing in labour law and represent mostly employees on a national basis.

3.12

The second issue and in respect of the application being a misconceived application relies on the judgment in the Mayo matter which has been addressed here above.

3.13

It is submitted that the Van Zyl matter was determined, and an order handed down in respect of the rescission application, prior to the Mayo matter being entertained by the above Honourable Court. The reference to the Mayo matter in the Van Zyl judgment can therefore constitute nothing more than an opinion by the court and the same could not have been taken into consideration when granting the order.

3.14

A further issue that has been raised in both the Mayo matter and the Van Zyl matter is that the Labour Court entertains numerous similar applications, which is brought on behalf of the Applicants by Jansens Incorporated, and in terms of which the processes of this Honourable Court is used to enforce statutory rights often to great expense to the other party and with a claim which is far less than the legal expenses.

3.15

It is respectfully submitted that whilst the result of the legislators drafting might indeed result in claims where legal expenses overshadow the claim amount, the same should not bar the Applicant from claiming the relief it seeks in a court of law. In considering the court’s view, as emphasised here above and, that Applicants should not bring applications for payment of amounts which would result in legal expenses which exceeds the amount claimed, regard should be had to the following:

This Honourable Court entertain various matters in which the relief sought does not sound in money and where no distinction can be drawn between to the claim and legal expenses;

Various applications, brought in terms of Section 77(1) and (3), seek relief, and includes orders in terms of which an employee be provided with salary advise slips, certificate of service, etc. No distinction can be drawn between the monitory value of such a claim and the expense in bringing the claim;

One employee may regard the value of the relief, where the relief is not of monetary value, far greater than another. One employee might merely suffer damages, as a result of not claiming unemployment benefits, and as a result of an employer’s failure to provide him with his salary advise slips in terms of Section 32 of the BCEA, whilst another might suffer damages and a loss of income as a result of not obtaining employment without a certificate of service and as a result of an employer not providing him with the same in terms of Section 42 of the BCEA.

3.16

There is absolute no reason as to why an employer should not be burdened with a cost order, even an adverse cost order, when the same is a result of his failure or refusal to comply with the laws of this country. The same employer might have faced a criminal conviction under the previous BCEA.

3.17

It is therefore respectfully submitted that there is no reason to apply any of the court’s views or findings, as expressed in the Van Zyl matter, in this matter.

4. SECTION 77(3) OF THE BCEA

It is now well established that an employee may bring a contractual claim in the High Court or the Labour Court in terms of Section 77(3), which is amplified by Section 77(4) of the BCEA. The question however remains as to the boundaries and extend of the jurisdiction conferred upon these courts.

4.1

This portion of the Heads of Argument is intended to show that the Applicant’s claim, irrespective of whether it has been brought in terms of Section 77 (1) or (3), read with Section (4) and Section 77(4) of the BCEA and Sections 157 and 158 of the LRA, falls within the jurisdiction of this court.

4.2

In Fedlife Insurance Ltd v Wolfaardt the majority of the Supreme Court of Appeal expressed the following view:

“The 1995 Act does not expressly abrogate an employee’s common law entitlement to enforce contractual rights and nor do I think that is does so by necessary implication. On the contrary there are clear indications in the 1995 Act that the legislature had no intention of doing so.”

“If an employee, as here, accepts repudiation and cancels, the Labour Court would not order reinstatement or re-employment (see s 193 (2)). That would leave compensation under s 194. S 194(1) allows punitive compensation only and s 194(2) is limited to a year’s remuneration. Having deliberately set those restrictions, it seems difficult, if not impossible, to infer that the legislation intended (notwithstanding the apparently limitless scope of s 158 (1)(a)(vi) and s 193 (3) that the 1995 Act itself should nevertheless provide the employee with the full balance of the common law damages as well. Absent such intention, s 195 surely contemplate that for such balance (recovery of which it, in terms, allows) an employee is free to sue in the civil courts. No doubt s 77 (3) of the Basic Conditions of Employment Act 75 of 1997 subsequently conferred concurrent jurisdiction on the Labour Court but that is now what is in issue in the present case.”

“I would imagine that our law of employment, infused with these values, would make provision both for a system that guarantees that employees may be entitled to claim as their financial due that which they bargained for, over and above statutory entitlements, as well as for a right not to be unfairly dismissed. I happen to think that this is that the Act (and the BCE Act in a different context) achieves, albeit perhaps not to the fullest extent possible.”

“Mr. Pretorius, who appeared for the respondent with Mr. Antonie, sought to avoid this conclusion by relying on section 77(3) of the BCE Act. That section 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 an agreement. This, he submitted, gives the High Court concurrent jurisdiction with the Labour Court to determine this matter. In my view the submission is unsound. The High Court does not need the BCE Act to give it jurisdiction in a matter concerning a contract of employment. It has that residual competence in any event, although it may be attenuated by statutory provisions such as section 157(1) of the Act. What section 77(3) does is to give the same residual concurrent competence to the Labour Court, something that, that court does not enjoy without specific statutory authority.”

4.3

The scope of the Labour Court’s jurisdiction in terms of the BCEA and where the same is also dealt with in the LRA, in this instance specifically severance pay, was also addressed in the Labour Court in the matter of Misa / SAMWU O.BO Members and Maricor Three (Pty) Ltd in which Revelas J found:

“Even though the question of severance pay is the only issue between the parties in this matter , the Labour Court may determine such a dispute, as it related to specific performance concerning a contract of employment (section 77A of the BCEA; See also Paper Printing Wood and Allied Workers Union & Others vs. Nasou – Via Africa, A Division of the National Education Group (Pty) Ltd 1999 ILJ 2101 (LC) where the Labour Court held 2103 F-H that (“Severance pay disputes, which in terms of section 190 (1) of the Act [the LRA], need to be referred for arbitration, are those disputes which arise when the employer refuses to pay the statutory minimum severance pay of one weeks remuneration for each year of service. Severance pay itself, or the exact amount thereof, may still be the subject matter for adjudication by the Labour Court, notwithstanding that it may be the only issue remaining between two parties, after conciliation”).”

4.4

In another important matter dealing with jurisdiction, University of the North v Franks and Others , the court also dealt with the scope of jurisdiction in terms of Section 77:

“There must be a direct relationship between the matter to be adjudicated and the employment contract. Section 4 of the BCEA incorporates the statutory basic conditions into all contracts of two courts about the same contract, eg in respect of basic conditions in the Labour Court and in respect of other terms in the civil courts. All section 77(3) does is deal with the dual claims problem. Had it been intended to do more, it would have been situated elsewhere, eg in the LRA.”

“I deal with the appellant’s last argument first. Parliament is not known for its logic and lucidity in draftsmanship. One should not read too much into the situation of a provision within a statute if it is in itself clear. Section 77 of the BCEA is the section in the Act which deals with jurisdictional aspects. Subsection (3) is certainly not out of place.”

“There is no indication that section 77(3) of the BCEA was enacted solely to solve the so-called dual claims problem. Section 77(1), with certain expectations, grants exclusive jurisdiction to the Labour Court “in respect of all matters in terms of this Act.” The Act seeks “to give effect to the right to fair labour practices referred to in section 23(1) of the Constitution by establishing and making provisions for the regulation of basic conditions of employment…” In those matters exclusive jurisdiction is conferred. Section 77(3) goes much wider. It expressly also deals with employment contracts which have no statutory basic conditions and thus fall outside the scope of the act. Consequently the legislature had in mind that the Labour Court should also have jurisdiction in such matters. Even if there is no dual claims problem. In short, the Labour Court is to have jurisdiction in respect of all employment contracts and exclusive jurisdiction in respect of some. But the jurisdiction is even wider. It is in respect of any matter concerning a contract of employment.

In this appeal it is not necessary to decide exactly how wide the jurisdictional net is cast. The termination of an employment contract and the terms and conditions upon which this is to occur are clearly matters concerning such contract. The Labour Court correctly held that it had jurisdiction.”

4.5

Parties’ common law rights in respect of specifically employment contracts, was also confirmed in Mafihla v Goven Mbeki Municipality in which it was said:

“…The reluctance of civil courts to order specific performance of contracts for personal services has been extensively written about. It is now clearly established that there is no rule of law that specific performance of employment contracts will not be granted (National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151(T))”

The jurisdiction was also extensively dealt with in Tsika v Buffalo City Municipality which have been extensively referred to herein above.

4.6

In Mogothle v Premier of the North West and Another the Labour Court recently confirmed that this court is obliged to enforce the contractual right of fair dealing as between an employer and an employee and that when an employer acts in breach of its contractual obligation, the effected employee may seek to enforce a contractual remedy by virtue of Section 77(3) of the BCEA.

4.7

This court has in various matters confirmed its jurisdiction to entertain issues of employment contracts in terms of Section 77(3).,

4.8

It is therefore respectfully submitted that Section 77(3) was enacted solely to deal with the dual claims problem, eg in respect of basic conditions in the Labour Court and in respect of contractual terms either in the Labour Court or in a civil court. It is accordingly submitted that this court does indeed enjoy jurisdiction in respect of the Applicant’s claim, irrespective of whether the Applicant’s claim is framed in terms of Section 77(1) or Section 77(3) or even both.

5. FORUM SHOPPING: THE CHIRWA MATTER

5.1

As the Chirwa matter is by now well known, these heads will not be burdened by an unnecessary exposition thereof. It is however important to reflect the views of various courts and their judgments, some contradicting, subsequent to the Chirwa matter.

5.2

The following is however important:

That the court found that the Fredericks matter is distinguishable from the Chirwa matter. The reason for this being that the applicants in the Fredericks matter did not disavow any reliance on the constitution, nor did they rely on the fair labour practice provisions of the LRA or any other provisions of the LRA.

The applicant in the Chirwa matter relied expressly upon the provisions of the LRA which deal with unfair dismissal and also relied on the constitution.

That Chirwa’s case was based on an allegation of an unfair dismissal for alleged poor work performance and that she was accordingly not at liberty to relocate the finely tuned dispute resolution structures created by the LRA and is accordingly not afforded an election.

It was accordingly found that the High Court does not enjoy jurisdiction to entertain the Chirwa matter.

The view of Ngcombo J, as set out in his reasons for his judgment and concurring therewith, was that the primary object of the LRA is to establish specialist courts with exclusive jurisdiction to decide on matters arising from labour and employment relations. Reference was made as to what was said in National Education Health and Allied Workers Union v University of Cape Town and others (NEHAWU) and concerning the role of the Labour Court and the Labour Appeal Court:

“The LAC is specialist court, which functions in a specialist area of law. The LAC and the Labour Court were established by parliament specifically to administer the LRA. They are charged with the responsibility for overseeing the ongoing interpretation and application of the LRA and development of labour relations policy and president. Through their skills and experience, judges of the LAC and the Labour Court accumulate the expertise which enables them to resolve a dispute speedily.”

In the minority judgment of Langa CJ it was emphasised that, in respect of the correct approach to determine jurisdiction, the substantive merits of a claim cannot determine whether a court has jurisdiction to hear it. In this regard the court referred to the matter of Frasier v ABSA Bank Ltd (National Director of Public Prosecutions as Amicus Curiae ).

In the same minority judgment the court also, with specific reference to question as to whether a claim as matter that has been assigned to the Labour Court in terms of Section 157 of the LRA, expressed its view that this debate can roughly be divided into two schools of thought. The one approach adopting purposive reading of the section and different school adopting a more literal approach. The latter being of the opinion that only those matters explicitly assigned to the Labour Court and LRA are excluded from the High Court’s jurisdiction.

The same minority judgment, in referring to the judgments of Skweyiya and Ngcombo JJ, expresses a view that a court should not substitute its preferred policy choices for those of the legislature.

Further references were made to the following:

“The concern of forum shopping is a valid one. It is, as this court has recently implied, undesirable for litigants to pick and choose where they institute actions in the hope of a better outcome. However, while forum shopping might not be ideal, Section 157 (2) of the LRA as interpreted in Fredericks confers concurrent jurisdiction to decide a claim in concerning the right to administrative justice in the labour context on two courts. The possibility of forum shopping is an unavoidable consequence of that legislative decision. There have been calls for legislative intervention to alter that decision and those calls are not without merits. But unless and until the call is heeded, the meaning of Section 157 (2) is set.”

5.3

An important issue was raised by Nugent JA in the minority decision in Makambi v MEC, Education, Eastern Cape (2008) ZACA 61 in which Nugent JA expressed the following;

“While the outcome in Chirwa might indeed be desirable I am not at all sure that this court is bound – or even permitted to adopt and apply a supposed policy if the legislator has not unburied their policy in law…”

5.4

The Chirwa decision was criticized in the Supreme Court of Appeal matter of Makhanya v University of Zululand and where the court expressed and found the following:

“This case is not materially different from Chirwa – I will expand upon that later in this judgment – and any attempt to distinguish them on their facts would be no more that a makeweight. That is that difficulty that now confronts us. On the one hand Fedlife (which seems to have had the approval of that court) and the BCEA make it clear that the high court has jurisdiction in this case. On the other hand if we are bound to apply the view expressed by the majority in Chirwa then we must reach the opposite conclusion.”

“The doctrine of precedent, which requires courts to follow the decisions of coordinate and higher courts, as Cameron JA said in this court in True Motives 84(Pty) Ltd v Mahdi, is an intrinsic feature of the rule of law, which is in turn foundational to our Constitution. He went on to say: ‘Without precedent there would be no certainty, no predictability and no coherence. The courts would operate in a tangle of unknowable considerations, which all too soon would become vulnerable to whim and fancy. Law would not rule. The operation of precedent, and its proper implementation, is therefore vital constitutional questions.’”

“Apart from its jurisdictional finding the majority in Chirwa also found that the claim was bad in law. What is most striking about that case is that the two findings are mutually destructive and cannot both have provided the ratio for the order that was made. I deal with that more fully later but for the moment I need only say that if the high court (and by extension the court on appeal) had no jurisdiction in the matter then that ought to have been an end of the matter: by its own decision it would have had no power to dismiss the claim on its merits. Conversely, if the ratio for the order was that the claim was bad in law, it follows that it must have had the power to make that finding. The ratio may be one or the other but it cannot be both.”

“The LRA creates certain rights for employees that include ‘the right not to be unfairly dismissed and [not to be] subjected to unfair labour practices’. I will refer to those rights interchangeably as ‘LRA rights’. Yet employees also have other rights, in common with other people generally, arising from the general law. One is the right that everyone has (a right emanating from the common law) to insist upon performance of a contract. Another is the right that everyone has (a right emanating from the Constitution and elaborated upon in the Promotion of Administrative Justice Act) to just administrative action.”

“Thus there is the potential (I emphasise that I refer only to the potential) for three separate claims to arise when an employee’s contract is terminated. One is for infringement of his or her LRA right. Another is for infringement of his or her common law right. And where it occurs in the public sector, a third is for infringement of his or her constitutional right.”

“An LRA right is enforceable only in the Commission for Conciliation, Mediation and Arbitration (CCMA) or in the Labour Court. (I will refer to them interchangeably as the ‘Labour Forums’ except where it becomes necessary to distinguish them). The common law right is enforceable in the high courts11 and in the Labour Court. And the constitutional right is enforceable in the high courts and in the Labour Court.”

“But for the fact that the right that was asserted in each case was different – which is not material to the jurisdictional issue – the two cases are materially indistinguishable. It seems to me that what has confused matters in both cases is that a claim for enforcement of an LRA right has become muddled with a separate claim for the enforcement of a right arising outside the LRA (in this case a claim for the enforcement of a contractual right in Chirwa a claim for enforcement of a constitutional right).”

“The power of a court to entertain a claim derives from the power that all organized states assume to themselves to bring to an end disputes amongst their inhabitants that are capable of being resolved by resort of law. Disputes of that kind are brought to and end either by upholding a claim that is brought before it by a claimant or by dismissing the claim. By so doing the order either permits or denies to the claimant the right to call into play the apparatus of the state to enforce the claim.”

“The original power of the state to bring disputes to an end (its judicial authority) is assigned in this country to the high courts by the Constitution. (I speak in general terms and do not deal with limitations that are not relevant to this case.) Judicial power is the power both to uphold and to dismiss a claim. It is sometimes overlooked that the dismissal of a claim is as much an exercise of judicial power as is the upholding of claim. A court that has no power to consider a claim has no power to do either (other than to dismiss the claim for want of jurisdiction).

“In general the high courts thus exercise the original authority of the state to resolve all disputes, of any kind, that are capable of being resolved by resort of law, unless that authority has been assigned to another court. When a high court resolves a contractual claim it exercises that original jurisdiction. When it considers a claim for enforcement of a constitutional right it exercises that original jurisdiction, so too when it enforces a statutory right.”

“Naturally a claim that falls within the concurrent jurisdiction of both the high court and a special court could not be brought in both courts. A litigant who did that would be confronted in one court by either a plea of lis pendens (the claim is pending in another court) or by a plea of res judicata (the claim has been disposed of by the other court). A claimant who has a claim that is capable of being constructed by either the two courts that have concurrent jurisdiction must necessarily choose in which to pursue the claim and, once having made the election, will not be able to bring the same claim before the other court. But where a person has two separated claims, each for enforcement of a different right, the position is altogether different, because then both claims will be capable of being pursued, simultaneously or sequentially, either both in one court, or each in one of those courts.”

“Some surprise was expressed in Chirwa at the notion that a plaintiff might formulate his or her claim in different ways and thereby bring it before a forum of his or her choice but that surprise seems to me to be misplaced. A plaintiff might indeed formulate a claim whatever way he or she chooses – though it might end up that the claim is bad. But if a claim, as formulated by the claimant, is enforceable in a particular court, then the plaintiff is entitled to bring if before that court. And if there are two courts before which it might be brought then that should not evoke surprise, because that is the nature of concurrent jurisdiction. It might be that the claim, as formulated, as a bad claim, and it will be dismissed for that reason, but that is another matter.”

“The first case that came before this court had purported to raise a jurisdictional challenge of this nature was Fedlife. Other cases followed that also purported to raise such jurisdictional challenges, which include United National Public Servants Association of SA v Digomo NO, Boxer Superstores, Mthatha v Mbenya, Fredericks v MEC for Education and Training, Eastern Cape, and they continue with a regularity that is becoming alarming. Upon proper analysis none of those cases was about jurisdiction. They were about whether the claimant had a good claim in law.”

“All those cases, as well as this case and Chirwa, have three features in common. The first is that the claimant was an employee. From that arises the second common feature, which is that the claimant had an LRA right. The third is that the claimant asserted that he or she also had a right that arose outside the terms of the LRA. (I do not say that the claimant necessarily had the right that was asserted. I say only that he or she asserted the right.) That right in each case was either the right at common law to exact performance or a contract, or it was the constitutional right to just administrative action.

“The claim in each case arose from the termination of the contract of employment. That fact had the potential to found a claim for relief for infringement of the LRA right. But it also had the potential to found, in addition, a claim for relief for infringement of the other right that was asserted. Thus in every case the claimant had a potential claim for enforcement of an LRA right (which was enforceable only in a Labour Forum). In every case the claimant also had a potential claim for enforcement of a right that fell outside the LRA (enforceable either in the high court or in the Labour Court).”

“It follows form this that the claimant in each case was capable of pursuing both claims in the Labour Court, either simultaneously or in succession (because they were different claims). In one claim the Labour Court (as one of the Labour Forums) would be asked to enforce an LRA right (falling within the exclusive power of the Labour Forums). And in the other claim it would be asked to enforce a right falling outside the LRA (but within the concurrent jurisdiction of the Labour Court). Similarly the claimant would have been capable of bringing one claim (the claim to enforce an LRA right) in a Labour Forum and to bring the other claim (for enforcement of the right arising outside the LRA) simultaneously, or sequentially, in the high court.”

“It is not unusual for two rights to be asserted arising from the same facts. That is what occurred in a leading case that came before this court, which I find to be most instructive in the present context.”

“In Lillcrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd the plaintiff said that it had two distinct claims arising from precisely the same facts. The facts were briefly these. A company (the plaintiff) contracted with a firm of professional engineers (the defendant) to provide professional services. The company was not satisfied with the way in which the engineers performed their services. The facts were capable of founding a claim for breach of contract. But the company chose instead to sue the engineers in delict for negligence. That was a novel claim, because a delictual right arising in those circumstances had not been recognised in law before. The defendant opposed the claim on the basis that the claim was bad in law because the right that was asserted did not exist.”

“The facts that were relied upon in support of the delictual claim corresponded with the facts that would have supported a claim in contract. What the court was being asked to do was to recognise that the company had two separate claims arising fro the same set of facts. This how the court expressed the question that was before it:

‘The only infringement of which the [company] complains is the infringement of the [engineers’] contractual duty to perform specific professional work with due diligence; and the damages which the [company] claims, are those which would place it in the position it would have occupied if the contract had been properly performed. In determining the present appeal we accordingly have to decide whether the infringement of this duty is a wrongful act of purpose of Aquilian liability.’

“I think it is patent that the high court would not have declined to consider the claim (a claim that asserted a right in delict) only because the company had an alternative claim arising from the same facts (a claim that asserted a right in contract) enforceable in another court. The claim that was before is was a claim in delict and it fell within the power (and the duty) of the high court to consider that claim (if only to dismiss it). That there another claim enforceable in another court was irrelevant. That can be tested by asking what would have happened had the two claims been brought simultaneously (one in either court). Clearly neither could have been met by a plea of lis pendens. Nor, if one was dismissed in one court (which is what occurred), could a plea of res judicata have succeeded in relation to the other.”

“With all that in mind it is difficult to see how a jurisdictional challenge could be maintained in this case, or in any of the cases I have mentioned. The claim in each case falls clearly within the ordinary power of the High Court, and the fact that the claimant had another claim (to enforce LRA rights) is irrelevant (on the jurisdictional issue).”

“I have pointed out the term ‘jurisdiction’, as it has been used in this case, and in the related cases that I have mentioned, describes the power of a court to consider and to either uphold or dismiss a claim. And I have also pointed out that it is sometimes overlooked that to dismiss a claim (other than for lack of jurisdiction) calls for the exercise of judicial power as much as it does to uphold the claim.”

“There is no answer because the submission offends and immutable rule of logic, which is that the power of a court to answer a question (the question whether a claim is good or bad) cannot be dependant upon the answer to the question. To express it another way, its power to consider a claim cannot be dependant upon whether the claim is a good claim or a bad claim. The Chief Justice, writing for the minority in Chirwa, expressed it as follows:

“The court below quoted a passage from the judgment of Ngcobo J, writing for the majority in Chirwa, which it construed to mean that Makhanya was put to an election as to which claim to enforce, and that his election as to which claim to enforce, and that his election to pursue one claim, (the claim in the CCMA) meant that as a matter of ‘judicial policy’ the court could stop him from pursuing the other claim by simply declining to exercise its jurisdiction to consider the claim. Taken to its logical conclusion, the approach that the court below adopted would mean that the claim would not be capable of being adjudicated upon at all by any court, not even to be dismissed on its merits. It is to be left wandering, unresolved, in some sort of limbo, for want of a court to at least consider it, if only thereafter to dismiss it.”

“As I pointed out earlier, it is true that a litigant who has a single claim that is enforceable in two courts that have concurrent jurisdiction must necessarily make an election as to which court to use. In that respect the law specifically allows for ‘forum shopping’ by allowing the litigant that choice. But it is altogether different when a litigant has two distinct claims one of which may only be enforced in one court, and the other of which may be enforced in another court, which is how the court below applied it in this case.

“The approach taken by the court below has the effect of denying to Makhanya, as a matter of ‘judicial policy’, the ability to pursue the present claim at all, thereby thwarting the assertion of the right upon which the claim is founded. That cannot be correct, because ‘judicial policy’ to that effect would be unconstitutional.”

“Even if the court below meant only that the claim could not be asserted in the high court but may be pursued in the Labour Court under its concurrent jurisdiction (which is not what the court had in mind) that would also be unconstitutional. The law has designated the high court as a forum for pursuit of the claim, a litigant may not be denied access to a court that the law allows.”

“Clearly a court may not thwart the assertion of a right by denying access to a court in which to do so. It would be no answer to say that it really will not matter because the claimant has another right that is just as good. If the claimant asserts two rights – and it is not in issue in this case that he does – then both must have a forum in which to be asserted. That is what the Constitution guarantees. To the extent that the objection was upheld on that basis the order cannot stand.”

“Before turning to that explanation there are two observations that I need to make. The first is that the claim that is before a court is 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. When a claimant says that the claim is to enforce a right that is created by the LRA, then that is the claim that the court has before it, as a fact. When he or she says that the claim is to enforce a right derived from the Constitution then, as a fact that is the claim. That the claim might be a bad claim is beside the point.”

“Both in Chirwa and in this case the right that was (and is now) asserted, is not an LRA right, but is one that falls within the ordinary power of the high court to enforce. In this case it falls within the ordinary power that the high courts have to enforce contractual rights (expressly preserved by the BCEA). And in Chirwa it fell within the ordinary power that the high courts have to enforce constitutional rights (expressly conferred by the Constitution and preserved in s 157(2) of the LRA).

“But what needs to be borne in mind, as Cameron JA reminds us in True Motives, is that what binds a lower court is only the ratio of the decision of a higher court and not what might have been said en passant (though views of a higher court that are expressed in that way are always instructive). My colleague dealt comprehensively in that case with the explanation that Schreiner JA gave in Pretoria City Council v Levinson of what constitutes the ration of the case. Schreiner JA subsequently repeated that, perhaps more succinctly, in Fellner v Minister of the Interior, when he said the following:

‘The decision or judgment, in the sense of the Court’s order, by itself only operates of course, between the parties themselves: it can only state law in so far as it discloses a rule.’

“I mentioned earlier that the most striking feature of Chirwa is that its two findings, in so far as they purport to express the rule upon which the order was founded, are mutually destructive. For the court was sitting on appeal in that case from a decision of the high court and its power on appeal necessarily replicated that of the high court. There is nothing in Chirwa to suggest that the court invoked anything but its powers on appeal in reaching its conclusions.”

“The high court, once having found that is had no jurisdiction, as the majority found, would not have been capable, by its own decision, of making any further orders in the matter. The only course open to it would have been to dismiss the claim, on the ground that it lacked the power to make further orders. It would not have been capable of deciding authoritatively that Ms Chirwa had no cause of action and dismissing her claim on that ground. Yet the majority (excluding Skweyiya J) went on to make a finding on that issue, which purported to have been at least one of the grounds on which the claim was dismissed.”

5.5

It is submitted that the aforementioned provides a proper exposition in respect of jurisdiction, jurisdictional challenges of various causes of action arising from common facts and the propositions in the Chirwa matter.

Whilst the Chirwa matter deals basically with the LRA and not the BCEA, it remains, as expressed by the views of our courts (such as the Langeveldt matter) that the BCEA and the LRA are very similar in respect of jurisdiction.
5.6

The current application, in this matter, again raises the issue of jurisdiction. The BCEA however does not require that a dispute be processed through an alternative dispute resolution mechanism prior to the dispute being able to be entertained by the Labour Court, whilst the LRA does require the contrary.

The Chirwa matter was also considered, with specific reference to the BCEA, in Tsika v Buffalo City Municipality in which the following was expressed:

“But that is not the end of the enquiry. Section 157 (1) of the LRA gives the Labour Court “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”. The next question then is whether the Labour Court has exclusive jurisdiction to entertain the present matter by virtue of any other law. In this matter, save for the common law, the only “other law” possibly applicable in this matter is the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”).

Although section 157(1) of the LRA refers to “any other law”, the BCEA contains its own jurisdictional provision. It would be convenient to quote section 77 of the BCEA in full at this point. It reads (emphasis supplied):

“Jurisdiction of Labour Court. –

(1) Subject to the constitution and the jurisdiction of the Labour Appeal Court, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this Act, except in respect of an offence specified in sections 43, 44, 46, 90 and 92.

(2) The Labour Court may review the performance or purported performance of any function provided for in this Act or any act or omission of any person in terms of this Act on any grounds that are permissible in law.

(3) 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 conditions of employment constitutes a term of that contract.

(4) Subsection (1) does not prevent any person relying upon a provision of this Act to establish that a basic condition of employment constitutes a term of contract of employment in any proceedings in a civil court or an arbitration held in terms of an agreement.

(5) If proceedings concerning any matter contemplated in terms of subsection (1) are instituted in a court that does not have jurisdiction in respect of that matter, that court at nay stage during proceedings refer to the matter to the Labour Court.”

The resemblance between subsection (1) and (3) of this section to sub – section (1) and (2) of section 157 of the LRA is striking. Does this mean that, on the authority of Chirwa, they must be interpreted in the same way?

In Chirwa, the majority reasoned essentially that if a matter falls within the exclusive jurisdiction of the Labour Court, the High Court cannot claim concurrent jurisdiction by virtue of section 157 (2). Section 157 (1) of the LRA gives the Labour Court exclusive jurisdiction “in respect of all matters that elsewhere in terms of this Act or any other law are to be determined by the Labour Court”. Section 77(1) of the BCEA, a less happy example of legal drafting, gives the Labour Court exclusive jurisdiction “in respect of all matters in terms of the Act”. “To avoid the obvious absurdity to which meaningless statutory provisions give rise, I assume this to be shorthand for the fuller version expressed in the LRA.”

In Chirwa, the majority appears to have extended the meaning of the term “Labour Court” to embrace the other dispute resolution forums established by the LRA (ie the CCMA and bargaining councils), which the unanimous Court declined to do in Fredericks, supra. However, that consideration does not apply in respect of the BCEA because, save for two provisions (section 41, which relates to disputes over statutory severance pay and section 80, which relates to victimization for exercising rights under the Act, neither of which is applicable in casu) the CCMA and bargaining councils have no jurisdiction in respect of matter arising under Act.37

Under the LRA, disputes to be adjudicated or arbitrated by the Labour Court or statutory arbitration tribunals are clearly and specifically indentified. The only matters specifically reserved in the BCEA for the Labour Court are those concerning contraventions of the BCEA if they are consolidated with dismissals disputes referred in terms of the LRA, disputes about the interpretation or application of Part C of Chapter 10 of the BCEA concerning victimization,40 and reviews of functions performed under the Act.41. For the rest, the BCEA sets out minimum conditions of employment applicable to all employees and employers and provides a specific procedure for their enforcement, beginning with compliance orders issued by the Department of Labour and ending within the Labour Court’s exclusive jurisdiction.

The only reference to that court’s role in contractual disputes to be found in the BCEA is in section 77A(e). This provides that among the “appropriate orders” the Labour Court may make, “subject to the provisions of the Act”, are determinations”

“that it is considered reasonably on any matter concerning a contract of employment in terms of section 77(3),which determination may include an order for specific performance, an award of damages or an award of compensation.””

“I have no doubt that in terms of this provision the Labour Court would have jurisdiction to entertain the plaintiff’s claim for payment of the severance gratuity and assume, for purposes of the present discussion, that is also has jurisdiction over the claim for payment of the pension monies withheld by the defendant. But does this mean that the High Court’s jurisdiction is then automatically excluded?”

“The first point to be noted is that section 77A(e), which gives the Labour Court power to determine contractual matters, limits that power to matters to be determined “in terms of section 77(3)”. On a literal, this means that, to the extent that section 77A(e) may have Section 77A(e) therefore takes the matter no further. Another difference between the LRA and the BCEA is that the provision conferring exclusive jurisdiction on the Labour Court in the latter Act is expressly qualified by subsection (4) of section 77, which permits litigants in the civil courts to establish that “a basic condition of employment constitutes a term of a contract of employment”. There would seemingly be little point to that provision if a litigant who does so in a civil court would be non – suited in consequence.”

“Fourthly, and perhaps most pertinently, if the Legislature wished to give the Labour Court exclusive jurisdiction in matters concerning contracts of employment, it could simply have used the word “exclusive” before “jurisdiction” in section 77(3) and omitted the phrase “with the civil courts.” The Constitutional Court may have the authority to rely on public policy issues and the need to avoid “forum shopping” to justify giving the word “concurrent” and unusual meaning section 157(2) of the LRA. I doubt, however, whether this Court can properly rely on such considerations to ignore the literal meaning of section 77(3) of the BCEA.”
Finally, I note that albeit before Chirwa, supra, the Labour Appeal Court itself, by the judgments of which this Court is bound, dismissed a challenge to the jurisdiction of the Labour Court to adjudicate a dispute involving the interpretation of an employment contract with this observation:

“The dispute therefore concerns a contract of employment any breach of which would vest the civil courts with jurisdiction to adjudicate it and, as the statute provides, so does the Labour Court concurrently have jurisdiction.”
Summary of the state of the law after Chirwa

“I conclude, then, that the law as it now stands on the jurisdiction of the High Court in labour and employment matters can be summarized as follows:

All matters in which the cause of action is covered by the LRA and for which the LRA provides a remedy fall within the exclusive jurisdiction of the Labour Court and hence outside the jurisdiction of this Court.

Employees of statutory institutions may not bring actions in this Court under PAJA or by way of application for common law review in respect of matters covered by the LRA.

Employees may not bypass the LRA dispute resolution procedure and approach the High Court with claims based on their constitutional right to fair labour practices.

This Court and other civil courts retain their common law jurisdiction to entertain claims for damages arising from alleged breaches of contracts of employment and the acts or omission of either party after the termination of employment, and the Labour Court has concurrent jurisdiction to determine such matters.

The only reliance placed by the plaintiff on labour legislation is a claim that the deductions from his policies constitutes a contravention of section 34 of the BCEA. Although the amounts paid into the policies over time were deducted from the plaintiff’s salary, it is debatable whether the accumulated capital can be regarded as remuneration, as contemplated by that provision. If it does not, this Court is empowered by virtue of its inherent jurisdiction to entertain that claim; if it does, this Court has jurisdiction to adjudicate that dispute by virtue of section 77(3) of the BCEA.”

“Although the judgment of the Constitutional Court in Chirwa is an obvious and clear endorsement of the virtues of the mechanisms, institutions and remedies crafted by the LRA and the merits of what Skweyiya J (referring to the explanatory memorandum accompanying the LRA) termed a “one – stop shop” for all labour – related disputes established by the statue, I do not understand the judgment expressly to exclude the right of an employee to pursue a contractual claim, either in this Court by virtue of the provisions of section 77(3) of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”), or in a civil court with jurisdiction. Nowhere in the judgment is it unequivocally stated that the effect of the legislative reforms effected after 1994 and, in particular, the creation of specific statutory remedies to address unfairness in employment practices, is to deprive an employee of any common law contractual rights, or of the right to enforce them in a civil court, or in this Court, in terms of section 77(3) of the BCEA.6 If the Constitutional court in Chirwa had intended to make a ruling to this effect, overriding as it would have done a consistent line of judgment by the SCA, it would have done so in express terms.”

Finally, if an employer acts in breach of its contractual obligation of fair dealing, the affected employee may seek to enforce a contractual remedy which may, by virtue of section 77(3) of the BCEA, be sought in this Court.

5.7

It is submitted that the effect of the Chirwa matter on an employee’s contractual claim in terms of Section 77(3) of the BCEA was correctly expressed Mogothle v Premier of the North West and others. The Chirwa decision was also considered in the matter of Mohklak v Minister of Finance and others. This was a matter concerning an application in terms of Section 77(3) of the BCEA. The court, in that matter, correctly referred to the Carmichele v Minister of Safety and Security matter in which it was found that courts may not embark on an independent exercise in common law in the every case where the common laws is issued.

5.8

In conclusion, the aforementioned is of importance to confirm that the Chirwa matter, specifically the findings and views expressed therein, was never intended to apply to the BCEA, specifically Sections 77(1) and (3) thereof.

6. THE BCEA AGAINST THE BACKGROUND OF THE CONSTITUTION

SECTION 77 (1) AND (3) OF THE BASIC CONDITIONS OF EMPLOYMENT ACT 77 OF 1997 READ WITH SECTION 34 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA 106 OF 1996

6.1

ACCESS TO COURTS

Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, where appropriate, another independent and impartial, tribunal or forum.

Vide: Section 34 of the Constitution of the Republic of South-Africa 108 of 1998.

Section 34 of the final constitution was preceded by Section 22 of the interim constitution, which provided for the right ‘to have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum’.

The purpose of Section 22 was stated by the Honourable Ackerman J in Bernstein v. Bester N.O at paragraph 105:

to emphasize and protect generally, but also specifically for the protection of the individual, the separation of powers, particularly the separation of the judiciary from the other arm of the state. Section 22 achieves this by ensuring that the courts and other for a which settle justiciable disputes are independent and impartial. It is a provision fundamental to the up holding of the rule of law, the constitutional state, the ‘regstaatidee’, for it prevents legislatures, at whatever level, from turning themselves by legerdemain into ‘courts’… By constitutionalising the requirements of independence and impartiality the section places the nature of the courts or other adjudicating for a beyond debate….

For the meaning of the entitlement to challenge the legality of any law or conduct to be meaningful, there must be a way of enforcing it. It is trite that an alleged illegality must be justiciable by having recourse to an entity that is separate and independent from the alleged perpetrator of the illegality.

So interpreted, this prevents the dilution of rights by legislation that compels them to be adjudicated in a tame tribunal that is programmed to reach a certain conclusion.

The rule of law seeks to promote the peaceful institutional resolution of disputes and to prevent the violence and arbitrariness that results from people taking matters into their own hands. Section 34 therefore, by insisting on the resolution of legal disputes by fair, independent and impartial institutions, prohibits the resort to self help.

Section 34 is usually read as guaranteeing three distinct rights for a person involved in a dispute that can be resolved by law. First, it creates a right of access to a court or another tribunal or forum. Secondly, it requires the tribunals or forums other than courts to be independent and impartial whether are revolved in the resolution of legal disputes. Thirdly, it is a ‘due process’ guarantee, requiring the legal disputes to which it replies to be decided in a fair and public hearing.

The threshold enquiry is whether a dispute can be resolved by law. If it can, the three components of Section 34 (access, independents and impartiality and fairness) are triggered.

6.1.1

THE THRESHOLD: DISPUTES THAT CAN BE RESOLVED BY THE APPLICATION OF LAW

The fact that the disputes currently serving before this Honourable Court is capable of being resolved by the application of law does not require much discussion. In this regard it suffices to state that the legal claims before this Honourable Court are founded in employment contracts, as amended and / or supplemented by the provisions of the Basic Conditions of Employment Act 75 of 1997. Disputes of interest are notably not capable of resolution by the application of law.

6.1.2

ACCESS TO COURTS AND OTHER FORUMS

Section 34 generates a right of access to a court or, where appropriate, another tribunal or forum. The purpose of this aspect of Section 34 is to provide protection against actions by the state and other persons which have now access to the courts and other forums.

Section 34 does not entitle litigants to approach any court they choose.
The rules of jurisdiction are therefore not an obstacle to access to court, as long as they allow a litigant to approach a court of competent jurisdiction for relief.

The claim currently before this Honourable Court is found in contract and / or the BCEA and is a claim whereby the applicant prays for specific compliance with provisions of his contract of employment as amended and / or supplemented by the provisions the BCEA.

It cannot be argued, with respect, that this Honourable Court does not by virtue of Section 7(1) and / or (3) of the BCEA possess the necessary jurisdiction to adjudicate upon this claim.

The Magistrates Court does not possess the necessary jurisdiction to adjudicate upon this claim as it does not have the power to order specific performance in the absence of a prayer in the alternative for damages. Damages as an alternative such a non-patrimonial claim is abstract and is nearly impossible to prove.

Substantially, these claims cannot be properly adjudicated upon by the Magistrates Courts and is it furthermore not desirable for these claims to serve before Magistrates when these applicants do have the right of access to this Honourable Court, being a specialist employment law court.

6.1.3

ACCESS TO JUSTICE

Evidently in an effort to increase access to justice in civil matters, the Contingency Fees Act 66 of 1997 permits agreements between legal practitioners and clients that fees will only be paid only the event that proposed litigation is successful. In Price Waterhouse Coopers Inc. v. National Potato Co – operative Ltd. the Supreme Court of Appeal overturned the common law prohibition on the enforcement of champertous agreements, to wit an agreement whereby an outsider provides finance to enable a party to litigate in return for a share of the proceeds of the action if that party was successful or an agreement whereby a party is said to ‘traffic’, gamble or speculate in litigation. Such agreements were traditionally regarded by the common law as contrary to public policy and unenforceable on the basis that they encouraged speculative litigation and consequently amounted to an abuse of legal process.

The considerations of public policy that had underwritten the disapproval of such contracts, the SCA held, were now out of date. The Contingency Fees Act indicated the legislator’s attitude on the issue and public policy now had to be considered in light of constitutional rights and values, notably the right of ‘untrammeled’ access to court protected by Section 34.

In Thint Holdings (Southern Africa) (Pty) Ltd and Thint (Pty) Ltd versus National Director of Public Prosecutions; Jacob Gedleyihlekisa Zuma v National Director of Public Prosecutions [2008] ZACC 14 the Court, upon considering Mr. Zuma’s right of access to Court held that this right had not been infringed, as Mr Zuma would be entitled to a full hearing before the appropriate forum, namely the trial court. Furthermore, the Court held that the purpose of section 34 was not to grant standing to all applicants with disputes, but instead to ensure that litigants who have suffered violation of their rights are not barred by procedural, legal or other obstacles from approaching a court.

In the labour context, labour unrest in the forms of unprotected strikes, unlawful and disruptive industrial action and can be reasonably equated to the concept of ‘self-help’, as was under discussion in S v Makwanjane where the Honourable Ackermann J stated:

In a constitutional state individuals agree (in principal at least) to abandon their rights to self – help in the protection of their rights only because the State in the constitutional state compact, assumes the obligation to protect these rights. If the State fails to discharge this duty adequately, there is a danger that individuals might feel justified in musing self – help to protect their rights.

In Chief Lesapo v North West Agricultural Bank the courts stressed the need for ‘constitutionalising the resolution of disputes, and preventing remedies being sought through self – help’.

6.1.4

RESTRICTIONS ON VEXATIOUS LITIGANTS

The application currently before this Honourable Court can accurately be described as ‘constitutional litigation’. The simple reason for this is, with respect, that the empowering statute which provides this Honourable Court with the necessary jurisdiction to adjudicate upon these claims, to wit the BCEA, forms part of the bouquet of legislation that was enacted subsequent to the constitution in order to give substance to the fundamental right to fair labour practices.

This notwithstanding the fact that the applications is founded in a contract of employment, as stated herein supra.

In constitutional litigation, the Constitutional Court has adopted an approach to costs, which is aimed at minimizing the potentially ‘chilling effect’ of an adverse cost order on prospective litigants. There is a very real risk that this Honourable Court can falter, with respect, in respect of the consideration of costs, which would have just such a chilling effect on prospective litigants whom seek to approach this Court by virtue of Sections 77(1) and / or 3 of the BCEA. This is will have the effect of a policy decision, which decision has been made by the legislator upon enacting the BCEA.

A similar approach is also followed by the Land Claims Court in respect of the litigation arising from the ‘social interest’ legislation under its jurisdiction.

The principal has accordingly been developed in the abovementioned cases, aimed at protecting vulnerable and marginalized people and groups, which would be undermined if litigants faced the prospect of a costs order after attempts at vindicating their rights failed. The same principal can be applied to litigation arising from other legislation giving effect to fundamental rights such as the Promotion of Administrative Justice Act and the Promotion of Access to Information Act.

7.

COSTS

Inevitably this Honourable Court is confronted with the question as to the appropriate general approach to costs in matters such as this one.

The correct approach to the consideration of costs, it is submitted, depends by and large on the Court’s finding as to whether the Applicant is entitled to approach this Court by virtue of direct reliance on the provisions of the BCEA, to wit by means of Section 77(1) of the Act. In this eventuality, it is respectfully submitted that a finding on the unlawfulness of the Respondent’s failure / refusal to comply with a minimum condition of employment is unavoidable as it flows directly from the transgression / breach of a statutory duty. Should the Honourable Court find however that the Applicant succeeds only in respect of his reliance on Section 77(3) whereby the Applicant claims for an order directing compliance / specific performance of / with a contractual provision as amended and / or supplemented by the Act by virtue of the provisions of Sections 4 and 5 thereof, then the there is no reason in law that the costs should not follow the result.

In the event that this Honourable Court does find that the Applicant has made out a proper case by means of direct reliance on the provisions of Section 77(1) of the BCEA, it must as a reasonable consequence also be accepted that the Respondent has acted not only unreasonably by failing to comply with basic conditions of employment but also acted unlawfully by breaching the provisions of the BCEA, ignoring a formal letter of demand addressed to it by the Applicant’s attorneys of record, which expressly explains the minimum condition of employment that had been breached and which calls for the Respondent’s timeous remedy of its said unlawful conduct. A Respondent in this position has been afforded every conceivable opportunity to mend its failure / refusal and to comply with the BCEA; alternatively to comply with the contract of employment, which is deemed essentially to contain the relevant minimum condition of employment.
Erasmus Superior Court Practice at E12-26 points out that an award of costs as between attorney and own client has been described as “exceptional, very punitive and as indicative of extreme opprobrium”. Erasmus lists various circumstances in which the Courts have, over the years, awarded costs on this exceptional scale. One of the instances is where a party’s conduct has been found to be “unconscionable, appalling and disgraceful”. See also in this regard Sentrachem Ltd v Prinsloo [1996] ZASCA 133; 1997 (2) SA 1 where the Court held, and I quote from the judgment at par 48 thereof:

“Die gewone kostebevel wat ‘n hof teen ‘n onsuksesvolle
litigant maak, is ‘n bevel dat koste getakseer word soos tussen party
en party. In so ‘n geval sal ‘n takseermeester hom laat lei deur ‘n
tarief van fooie wat in die hofreels opgeneem is. Die suksesvolle
litigant sal dan nie al sy koste van sy teenparty kan verhaal nie. Hy
sal aanspreeklik teenoor sy prokureur bly vir die kostes wat hy nie
van die teenparty kon verhaal nie. In sekere gevalle kan ‘n Hof
egter beveel dat die koste soos tussen prokureur en klient betaal moet
word. So ‘n bevel kan gemaak word waar die Hof sy misnoe te
kenne wil gee met die gedrag van die onsuksesvolle party.”

In Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging 1946 AD
597 at 607 Tindall AR states:

“The true explanation of awards of attorney and client costs not expressly authorised by Statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case considers it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation. Theoretically, a party and party bill taxed in accordance with the tariff will be reasonably sufficient for that purpose. But in fact a party may have incurred expense which is reasonably necessary but is not chargeable in the party and party bill Therefore in a particular case the Court will try to ensure, as far as it can, that the successful party is recouped. I say ‘as far as it can’ because there may be a considerable difference between the amount of the attorney and client bill which a successful party is bound to pay to his own attorney and the amount of an attorney and client bill which has been taxed against the losing party. Where the attorney and client costs are to be paid by the opposite party, the taxation should be stricter than in a taxation between attorney and client where the costs are to be paid by the client to his attorney. Thus the award of attorney and client costs against the losing party really demands what may be termed an intermediate basis of taxation.”

The Applicant’s prayer for an attorney-and-own-client cost order against the Respondent is accordingly not misplaced. The Respondent has been shown to have acted unlawfully and unreasonably either in relation to its refusal to comply with the most basic terms of the employment contract and / or in relation to the minimum conditions of employment prescribed by the BCEA.

THUS DONE AND SIGNED AT POTCHEFSTROOM ON this the ___ DAY OF september 2011.

____________________________
JANSENS ATTORNEYS
BRAM FISCHER HOUSE
4 PETER MOKABA AVENUE
POTCHEFSTROOM
P O Box 1000
Potchefstroom 2520
Tel: (018) 293-1011
Fax: (018) 293-1411
Ref: jhj/AD/H1

TO:

THE REGISTRAR OF THE ABOVE HONOURABLE COURT
6TH FLOOR
ARBOUR SQUARE BUILDING
86 JUTA STREET
BRAAMFONTEIN
PRIVATE BAG X52
BRAAMFONTEIN 2017
TEL: (011) 359-5700
FAX: (011) 403-9327
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