Mbambi v Tyeks Security Services

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Notyesi AJ
• Judgment Date: 04 July 2023
• Docket Number: 4348/2019
• Hearing Date: 24 May 2023
• Court: Eastern Cape Division

Notyesi AJ:

Introduction

[1]

Mr Mzoliswa Mbambi of Tombo Administrative Area, Port St Johns, was employed by Tyeks Security Services as a security officer. He was dismissed from his employment, according to him, in June 2019. Consequent thereto, he instituted these proceedings against Tyeks Security Services seeking payment of damages in the sum of R408 825. According to him, prior to his dismissal, Tyeks Security Services had

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attempted to transfer him from his station at the Port St Johns Post Office and to place him at a certain bed and breakfast enterprise within Port St Johns.

[2]

In these proceedings, Mr Mbambi is contending that his dismissal constituted an act of repudiation of his contract by Tyeks Security Services and that he has accepted the repudiation. Mr Mbambi contended that, for his cause of action, he is relying on the Basic Conditions of Employment Act [1] (‘BCEA’) and the repudiation of his contract.

[3]

On the contrary, Tyeks Security Services raised a special plea. Tyeks Security Services contend that the High Court has no jurisdiction to adjudicate the dispute because the dispute falls exclusively within the jurisdiction of the Labour Court. Tyeks Security Services submitted that Mr Mbambi absconded from work and was thereafter referred for disciplinary proceedings. There is a dispute about the nature of the contract of employment between the parties. The precise terms of the contract have not been pleaded with clarity. It is also not clear whether Mr Mbambi was dismissed or whether his matter is subject to disciplinary processes.

Parties

[4]

For the sake of convenience, the parties shall simply be referred to as the ‘Plaintiff’ (Mr Mbambi) and the ‘Defendant’ (Tyeks Security Services).

The issue

[5]

By agreement of the parties, this Court has been asked to resolve the special plea, and therefore, the only issue is whether this Court has jurisdiction to entertain the dispute or whether the dispute falls within the exclusive jurisdiction of the Labour Court.

The pleadings

[6]

In the amended particulars of claim, Mr Mbambi, in setting out his cause of action, averred as follows:

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“(a)

The cause of action took place within the area of jurisdiction of the above honourable court.

(b)

On or about the 1st day of April 2019 and at Port St Johns the parties concluded a written fixed-term contract of employment (“the contract”) in terms of which Mr Mbambi was employed by the defendant as a security officer. The defendant refused to give Mr Mbambi a copy of the contract, despite several requests by Mr Mbambi to do so, consequently Mr Mbambi does not have in his possession, and is unable to annex a copy thereof hereto. In confirmation hereof an affidavit by Mr Mbambi’s attorney is annexed hereto marked “A”.

(c)

The material express and tacit terms of the contract between the parties are, inter alia, as follows –

(c.i)

That Mr Mbambi would render personal services to the defendant as a security officer stationed at South African Post Office, Port St Johns, (“hereinafter referred to as the site”);

(c.ii)

That Mr Mbambi would be entitled to remuneration on a monthly basis as follows:

(c.ii.i)

Basic salary of R3744.00

(c.ii.ii)

Cleaning allowance of R31.00

(c.ii.iii)

Area 3 premium R60.00

(c.ii.iv)

Overtime at an hourly rate of 18.00 for overtime work reasonable performed from time to time;

(c.ii.v)

Sunday pay at the rate of 1.6 times the normal rate for work performed on Sunday.

(c.iii)

That the contract is specifically linked to a service agreement between the defendant and the South African Post Office for the provision of security and related services by the former to the latter;

(c.iv)

That the contract would run for a period of five years with effect from 01 April 2019 up to and including 31 March 2025;

(c.v)

That any party wishing to terminate the contract would have to give the other party a notice of the intended termination in accordance with the legal notice periods.

(d)

Mr Mbambi commenced employment in terms of the basic conditions of employment Act 75 of 1997 and in terms of the conditions set out above on 01 April 2019 and at the site;

(e)

The defendant has evinced a deliberate and unequivocal determination and intention to no longer be bound by the contract in one or more of the following material manner-

(e.i)

On the 15th June 2019, without any notice and/or awful cause, it-

(e.i.i)

Arbitrary prevented Mr Mbambi from continuing with his duties at the site, and replaced him with another security officer, thereby repudiating the contract;

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(e.i.ii)

Offered Mr Mbambi a new contract of employment in which he would be placed at a certain Bead & Breakfast enterprise in Port St Johns, which Mr Mbambi rejected;

(e.i.iii)

It last paid Mr Mbambi his salary on 30 June 2019;

(e.i.iv)

On the 18th July 2019 its Human Resource Manager, namely, one Mr Daniels, verbally informed Mr Mbambi’s attorney, Mr Magoxo, that plaintiff was dismissed from employment in June 2019;

(f)

By way of a letter dated 8th November 2019, addressed by Mr Mbambi’s attorneys to the defendant Mr Mbambi elected to accept the repudiation, and terminated the contract between the parties. The aforesaid letter is annexed marked “B”. Mr Mbambi submits that he relies on basic conditions of employment Act 75 of 1997 (as amended) and repudiation of a contract on his claim.

(g)

As a result of the defendants aforesaid repudiation, Mr Mbambi suffered damages in the sum of R408 825 (four hundred and eight thousand eight hundred and twenty five rands) which represents past future remuneration payable to Mr Mbambi for the duration of the contract, calculated with effect from July 2019 up to and including March 2025.”

[7]

In response to Mr Mbambi’s amended particulars of claim, Tyeks Security Services raised the special plea as follows–

“A.JURISDICTION

WHEREAS the Defendant pleads that this Honourable Court has no jurisdiction over this matter, as Mr Mbambi absconded from duty and no Disciplinary hearing has been scheduled yet in respect of the same.

AND WHEREAS this Honourable Court lacks jurisdiction to hear matters where an order is sought for matters where the Labour Court, Commission for Conciliation, mediation and Arbitration (CCMA) and Bargaining Councils have exclusive jurisdiction.

WHEREFORE the Defendant on this ground alone prays that the claim of Mr Mbambi be dismissed with costs.”

The law on jurisdiction

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[8]

An assessment of jurisdiction must be based on the parties’ pleadings as opposed to the substantive merits of the case. [2] When a court’s jurisdiction is challenged, the court should base its conclusion on the pleadings, as they contain the legal basis of the claim under which Mr Mbambi had chosen to invoke the court’s competence. [3]

[9]

In the case of Makhanya v University of Zululand, [4] Nugent JA held–

“In general the high courts thus exercise the original authority of the state to resolve all disputes, of any kind, that are capable...