Section 77 of the Basic Conditions of Employment Act 75 of 1997 as a remedy to enforce contracts of employment
The main intention of this paper was to determine the accessibility of Section 77 of the BCEA as a remedy for the enforcement of contracts of employment and the possible impact of the provision of concurrent jurisdictions in disputes regarding contracts of employment. From the above court cases and discussions regarding Section 77 of the BCEA, it can be concluded that there is more to labour law in South Africa than to the different provisions in legislation and case law. By this is meant that it is not only legislation, but also the common law contract principles, as well as case law, that provide guidelines for the labour law in South Africa regarding which path should be followed if a dispute arises. As mentioned throughout this paper, sufficient remedies are available for disputes regarding contracts of employment. It can be concluded from the discussion above that Section 77 of the BCEA has been applied by the Labour Court on more than one occasion and has brought answers to possible jurisdictional issues. Section 77 of the BCEA brought sufficient assistance where it was needed and can be seen as a remedy to enforce contracts of employment. In the current situation it is not always crystal clear which court should be approached, but case law discussed throughout this paper can be used as a possible guideline to determine the correct forum. The current approach to jurisdiction in terms of contracts of employment and Section 77 of the BCEA as a remedy thereto is indicated in the three cases of Mohlaka, Tsika and Mogothle, which were discussed in chapter 3 of this paper. In the most recent case of the three, that of Mogothle, the court determined that the development of the common law contract of employment was controversial because it included a “duty of fair dealing”, but found in favour thereof, especially to strengthen the SCA “trio”271 of cases. The court further determined that the case of Chirwa did not overturn the decisions by 271 The trio of cases are the cases of Gumbi, Boxer Superstores and Murray, which were discussed in chapter 3. the “trio” of case law and that both the Labour Court and civil court have jurisdiction to develop the common law. In my opinion, this approach by the Labour Court is correct, although the case of Mogothle still does not provide a clear indication of which court should be approached with regard to employment contracts. Although the court determined that both the Labour Court and the civil courts have jurisdiction, uncertainty still exists. It is here where the amendments to the BCEA come in. The possible amendments to the BCEA would indicate that specifically the Labour Court will have jurisdiction to determine matters where a contract of employment is in question. This will mean that Section 77 of the BCEA would be a remedy to determine contracts of employment. With regard to remedies available to parties in need thereof, the Labour Act of Namibia can be seen as a more “simplistic” application of Basic Principles of Employment than that of South African Labour Law and therefore makes remedies more easily available to the parties in dispute. The non-complicated way in which the Namibian courts approach disputes regarding contracts of employment should be acknowledged by South African courts and a more straightforward approach should be adopted to apply remedies to disputes. The problem of forum-shopping in South Africa does exist and the development of the dual system jurisprudence should be ended as soon as possible. The possible amendments to Section 77 of the BCEA, as discussed in Chapter 4, will bring clarity and surety regarding which court should be approached during the breach of a contract of employment and Section 77 of the BCEA would, therefore, definitely be a perfect remedy to enforce contracts of employment should these amendments be accepted into South African labour legislation.
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