Section 77 of the Basic Conditions of Employment Act 75 of 1997 as a remedy to enforce contracts of employment
Abstract
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.
Collections
- Law [834]