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Cheryll Lewarne v. Fochem International (Pty) Ltd. - (18 Sep 2019)

Labour Court has concurrent jurisdiction with civil courts to hear and determine any matter concerning a contract of employment


The narrow issue in present appeal is whether the Gauteng Division of the High Court, Johannesburg, had the jurisdiction to determine the Appellant’s application for an order for the payment of her salary by the Respondent, Fochem International (Pty) Limited, her employer at the time. The Appellant, Ms Cheryll Lewarne, was employed by the Respondent as a Financial Manager for approximately eight years and, thereafter, as a director at a gross monthly salary of R 75000. She was also entitled to be paid a 13th cheque equal to one month’s salary annually on or before 20 December.

On December 2016, Appellant was only paid an amount of R50 000 as a 13th cheque. On 12 January 2017, her attorneys of record received a letter from the Respondent’s attorneys accusing the Appellant of several acts of impropriety ranging from company credit card abuse, unauthorised trade in and purchase of a motor vehicle at company expense, unlawful employment of her son, unauthorised increase of her salary, failure to comply with a company directive and incapacity resulting from constant ill-health. The letter also placed the Appellant on suspension with immediate effect.

The Appellant launched an application in the High Court. The high court upheld the point of law, and dismissed the application with costs. The issue to be determined is whether the High Court was correct in its finding that it did not have the necessary jurisdiction to hear the application.

Section 77 of Basic Conditions of Employment Act 75 of 1997 (the BCEA) in relevant parts provides that, 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. The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.

When a Court’s jurisdiction is challenged, the court should base its conclusion on the applicant’s pleadings, as they contain the legal basis of the claim under which the applicant had chosen to invoke the Court’s competence. In a string of cases, the Labour Court and the Labour Appeal Court have refined the parameters of the Labour Court’s exclusive jurisdiction in terms of Section 77(1) of the BCEA and have held 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 BCEA requires to be dealt with by the court.

Generally in instances where the dispute relates to, is linked to, or is connected with an employment contract, Section 77(3) of the BCEA which confers concurrent jurisdiction on the civil courts and the Labour Courts applies. In the present matter, the Appellant’s action arose out of and related to the contract of employment between her and the respondent. It was for payment of money due to her in terms of her employment contract. It was this action that was before the court and on which it had to decide whether it had the necessary jurisdiction. It was thus not necessary for the court to place any reliance on the Appellant’s reference, in her founding affidavit, to the respondent’s professed reasons for withholding her remuneration, and the fact that that was in contravention of Section 34 of the BCEA. These allegations were simply a summary of relevant facts but they did not alter the essential nature of the Appellant’s action.

The High Court erred in finding that, it did not have jurisdiction, and, in the absence of an answering affidavit, attacking the merits of the application, the Appellant is entitled to succeed on the relief sought in its prayers. The Respondent’s point of law raised in terms of Rule 6(5)(d)(iii) of the Uniform Rules of the Court is dismissed. The Respondent is ordered to make payments to the applicant along with interest.


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