IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case No:  450/99
In the matter between:
FEDLIFE ASSURANCE LIMITED
Appellant
and
HENDRIK JOHANNES WOLFAARDT
Respondent
Coram:
Howie, Marais, Mpati, JJA, Nugent and Froneman, AJJA
Heard:
16 August 2001
Delivered: 18 September 2001
Damages for repudiation of fixed-term employment contract – if not whether such claim
excluded by Labour Relations Act No 66 of 1995 – if not, whether Labour Court has
exclusive jurisdiction in respect of such a claim.
J U D G M E N T

NUGENT, A J A:
[1] The Labour Relations Act No. 66 of 1995 has created an elaborate and in
many respects innovative legal framework for the regulation of the relationship
between employers and employees.  In some respects, however, the Act retains
and builds upon concepts and principles that were developed by the courts when
interpreting the Labour Relations Act 28 of 1956 which it repealed.
[2] The 1956 Act (after its amendment in 1979) created a statutory remedy
for the commission of what was referred to as an “unfair labour practice” which
was soon interpreted by the courts to include the unfair dismissal of an
employee (Brassey: Employment Law Vol. 1 A1:47).  The effect of that
interpretation was to recognise the existence of a right not to be unfairly
dismissed and such a right is now expressly provided for in s 185 of the 1995
Act.

[3] The 1995 Act also establishes a Labour Court as a superior court with
“authority, inherent powers and standing, in relation to matters under its
jurisdiction, equal to that which a court of a provincial division of the (High)
Court has in relation to the matters under its jurisdiction” (s 151(2)).  In some
matters the jurisdiction of the Labour Court is exclusive while in others its
jurisdiction is concurrent with that of the High Court.  We are concerned only
with the Labour Court’s exclusive jurisdiction which is conferred upon it by s
157(1) in the following terms:
“Subject to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has 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.”
[4] The issue in the present case purports to be whether the respondent’s
action  against the appellant is a matter that falls within the exclusive
jurisdiction of the Labour Court and is thus excluded from the jurisdiction of the

High Court.  On closer examination, however, the question goes further and
calls upon us to decide whether the respondent’s claim is legally cognisable at
all.
[5] The appeal arises from an action that was instituted by the respondent
against the appellant in the Witwatersrand Local Division of the High Court in
which he claimed damages for breach of contract.  The claim is singular only in
that the contract is one of employment.  In his particulars of claim the
respondent alleged that the contract was for a fixed term of five years
commencing on 1 December 1996 and that the appellant repudiated the contract
by purporting to terminate it with effect from 31 December 1998 on the grounds
that the respondent’s position had become redundant.  The respondent alleged
that he had elected to accept the appellant’s repudiation (with the result that the
contract came to an end) and he claimed damages in consequence of the breach.

[6] The appellant filed a special plea the material portions of which read as
follows:
“2.
In terms of Section 157(1) of the Labour Relations Act No
66 of 1995, the Labour Court has exclusive jurisdiction in respect
of all matters that must be determined by the Labour Court and all
matters that in terms of any other law are to be determined by the
Labour Court.
3.
The Labour Court in the premises has exclusive jurisdiction
to adjudicate dismissals occasioned by operational requirements in
terms of Section 191(5) and Section 189 of the Labour Relations
Act.
4.
In the premises the above Honourable Court does not have
jurisdiction to adjudicate the dispute between the parties by virtue
of the fact that the Labour Court has exclusive jurisdiction to
adjudicate same.”
[7] The respondent excepted to the special plea on the grounds that it failed
to disclose a defence.  The exception was upheld and the special plea was set
aside by Odendaal AJ who considered himself bound by the decision in Jacot-
Guillarmod v Provincial Government, Gauteng, and Another 1999(3) SA 594

(T) which was on all fours with the present case. The appellant now appeals to
this court with leave granted by the court a quo.
[8] The only question that was considered in Jacot-Guillarmod’s case , and
by the court a quo, was whether an action for contractual damages arising from
the repudiation of a contract of employment was a matter that fell within the
exclusive jurisdiction of the Labour Court as provided for in s 157(1) of the
1995 Act.  However, the principal argument that was advanced before us went
considerably further and was rather in the nature of an exception to the
particulars of claim.   The main submission on behalf of the appellant was that
an action of that nature is no longer cognisable in our law and that the employee
concerned (in this case the respondent) has no remedies other than those
provided for in Chapter VIII of the 1995 Act.  If that is indeed so then clearly
those remedies are not enforceable in the High Court.

[9] Before turning to that argument it is helpful to briefly summarise the
rights and remedies that are provided for in Chapter VIII of the 1995 Act.   The
foundation of the chapter, which deals with “Unfair Dismissals”, is s 185, which
provides that “every employee has the right not to be unfairly dismissed”.   The
remaining sections expand upon the content of that right and prescribe the
procedures and remedies for its enforcement.
[10] An employee who claims to have been unfairly dismissed may refer the
dispute to a statutory council or to the Commission for Conciliation Mediation
and Arbitration (whichever is appropriate in the particular case) which must
attempt to resolve the dispute through conciliation (s 191(1) and (4)).   If the
dispute is not resolved through conciliation it must be resolved by arbitration in
some cases or it may be referred to the Labour Court for adjudication in other
cases depending upon the nature of the dismissal (s 191(5)).   If the Labour

Court or the arbitrator finds that the dismissal was unfair the employer may be
ordered to reinstate or to re-employ the employee (such an order must be made
in certain cases) or to pay compensation (s 193(1)).  Section 194 places limits
on the amount of compensation that may be awarded. Where the dismissal was
automatically unfair, as that term is used in the 1995 Act, or it was based upon
the employer’s operational requirements and is found to be unfair, the Labour
Court may in addition make any other order that it considers appropriate in the
circumstances (s 193).
[11] The principal argument advanced on behalf of the appellant was that
Chapter VIII of the 1995 Act codifies the rights and remedies that are available
to all employees in our law arising from the termination of their employment.
In other words, so it was submitted, the effect of the 1995 Act has been on the
one hand to confer on employees the rights and remedies provided for in

Chapter VIII in the event of dismissal and on the other hand to deprive them of
their common law remedies.   The chapter is thus said to be not only
comprehensive but also exhaustive insofar as it provides for remedies upon
dismissal.  Support for that construction of the Act was sought in what was
referred to as its broad scheme rather than in any of its particular provisions.   It
was submitted that the material inroads made by the legislature upon the right of
employers to terminate contracts of employment in accordance with their terms
must necessarily have been intended to be balanced by the abrogation of
employees’ rights to enforce such contracts at common law either by way of
claiming specific performance or by way of claiming damages.
[12] In effect, according to that submission, the common law right to enforce a
fixed-term contract of employment has been abolished by the 1995 Act.   Such a
contract must then take its place alongside any other employment contract that

may be terminated at the employer’s will provided the termination does not
constitute an unfair dismissal as contemplated by Chapter VII of the 1995 Act.
[13] The clear purpose of the legislature when it introduced a remedy against
unfair dismissal in 1979 was to supplement the common law rights of an
employee whose employment might be lawfully terminated at the will of the
employer (whether upon notice or summarily for breach).  It was to provide an
additional right to an employee whose employment might be terminated
lawfully but in circumstances that were nevertheless unfair.
[14] That position was perhaps ameliorated with the adoption of the Interim
Constitution in 1994 which guaranteed to every person the right to fair labour
practices in s 27(1) and rendered invalid any law inconsistent with its terms
(which has been repeated in the present Constitution).  Thus it might be that an

implied right not to be unfairly dismissed was imported into the common law
employment relationship by s 27(1) of the Interim Constitution (and now by s
23(1) of the present Constitution) even before the 1995 Act was enacted.
[15] However there can be no suggestion that the constitutional dispensation
deprived employees of the common law right to enforce the terms of a fixed-
term contract of employment.  Thus irrespective of whether the 1995 Act was
declaratory of rights that had their source in the Interim Constitution or whether
it created substantive rights itself, the question is whether it simultaneously
deprived employees of their pre-existing common law right to enforce such
contracts, thereby confining them to the remedies for “unlawful dismissal” as
provided for in the 1995 Act.

[16] 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 (Stadsraad van Pretoria v
Van Wyk 1973 (2) SA 779 (A) at 784 D-H).  While the advent  of  the
Constitution, and s 39(2) in particular, has not had the effect of prohibiting
entirely the use of the presumption against legislative alteration of the existing
law (whether common law or statute) when interpreting a statute which is less
than clear, it nevertheless limits its field of application.  The same is true of the
presumption against the deprivation of existing rights.  To illustrate:  where a
statute is ambiguous as to whether or not an existing law or right has been
repealed, abolished or altered and the existing law or right is not in harmony
with “the spirit, purport and objects of the Bill of Rights” there would appear to

be no justification for invoking any such presumption.  But where the
existing law or right is not unharmonious the presumption will still find
application.  The continued existence of the common law right of employees to
be fully compensated for the damages they can prove they have suffered by
reason of an unlawful premature termination by their employers of fixed-term
contracts of employment is not in conflict with the spirit, purport and objects of
the Bill of Rights and it is appropriate to invoke the presumption in the present
case.
[17] The 1995 Act does not expressly abrogate an employee’s common law
entitlement to enforce contractual rights and nor do I think that it 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.

[18] The clearest indication that it had no such intention is s 186(b) which
extends the meaning of “dismissal” to include the following circumstances:
“(A)n employee reasonably expected the employer to renew a fixed
term contract of employment on the same or similar terms but the
employer offered to renew it on less favourable terms, or did not
renew it.”
It is significant that although the legislature dealt specifically with fixed-term
contracts in this definition it did not include the premature termination of such a
contract notwithstanding that such a termination would be manifestly unfair.
The reason for that is plain:  The common law right to enforce such a term
remained intact and it was thus not necessary to declare a premature termination
to be an unfair dismissal.  The very reference to fixed-term contracts makes it
clear that the legislature recognized their continued enforceability and any other
construction would render the definition absurd.  By enacting s 186(b) the
legislature intended to bestow upon an employee whose fixed-term contract has
run its course a new remedy designed to provide, in addition to the full

performance of the employer’s contractual obligations, compensation (albeit
of an arbitrary amount) if the employer refuses to agree to renew the contract
where there was a reasonable expectation that such would occur.  That being so,
it would be strange indeed, and bereft of any rationality, for the legislature to
deny to the employee whose fixed term contract of five years has been
unlawfully terminated within days of appointment the benefit of either specific
performance of the contract or damages for its premature termination and to
confine the employee to the limited and entirely arbitrary compensation yielded
by the application of the formula in s 194 of the 1995 Act.  It is manifest that
the result would be that the former employee, although in far less need than the
latter of a remedy, will have received more than is due at common law, but that
the latter may not recover as of right even that which was payable at common
law and instead must rest content with “compensation” which may be
ludicrously small in comparison with the true loss.   The absurdity does not end

there.  If it were so that a plaintiff such as this is confined to a claim for
“compensation” in terms of s 194, where the employer proves that “the reason
for dismissal is a fair reason related to the employee’s conduct or capacity or
based on the employer’s operational requirements” and “that the dismissal was
effected in accordance with a fair procedure” the plaintiff would not be entitled
to any compensation.  That would be the combined effect of s 188(1)(a) and (b);
s 192;  s 193 and s 194.  Such a result could  never have been the intention of
the legislature.
[19] Moreover, s 195 makes it clear that an order or award of compensation in
consequence of an unfair dismissal is “in addition to and not a substitute for any
other amount to which the employee is entitled in terms of any law, collective
agreement or contract of employment”.   It was submitted on behalf of the
appellant that the “other amounts” referred to in that section are those amounts

that might have accrued to an employee at the time of the dismissal, such as
accrued wages, leave pay and the like, and do not include damages for breach.  I
can see no reason to restrict the plain words of the section in that manner.
[20] I can see no reason why the legislature should have sought to produce
that result.  A right not to be unfairly dismissed finds its application pre-
eminently in circumstances in which the employee has no contractual security
of employment.  While it is understandable that the legislature wished to
enhance the security of that class of employees I can see no reason why it
should have exacted a prejudicial quid pro quo from another class of employees
entirely in order to do so.  In my view there is simply no logical or conceptual
connection between the rights that have been afforded on the one hand and
those that are said to have been abolished on the other.

[21] We were much pressed with the contention that, although the
respondent plainly intended to plead a common law claim for damages arising
from the unlawful premature repudiation of the fixed term contract and
studiously abstained from reliance upon an “unfair labour practice” and making
a claim for “compensation” within the meaning of the 1995 Act, but also
pleaded the employer’s professed reason for the repudiation as being its
operational requirements, he was confined to the remedies set forth in s 194 of
the Act.  Counsel for appellant submitted that whether or not respondent
intended that was irrelevant;  he could not escape being confined to s 194 by the
manner in which he chose to plead his claim.  Khumalo v Potgieter 2001 (3) SA
63 (SCA) was said to be authority for the submission.  In my view it is not.  It
appears plainly from the judgment in that case that it was common cause that
“the appellant’s claimed entitlement to continued occupation of a portion of the

farm in question is based solely [my emphasis] on the Act”.   (At 66 B.)
There was no other basis in law for the claim.  As the Court said at 67E:
“In order to succeed with prayer 1, the appellant had to found her case on
the provisions of the Act.  This is what she in fact did, even though she
did not expressly refer to the terms of the Act.”
In the present case a clearly identifiable and recognisable common law claim for
damages has been pleaded.  The disclosure of the employer’s professed reason
for repudiating the contract was mere surplusage and did not signal a resort to a
claim under Chapter VIII.
[22] In my view Chapter VIII of the 1995 Act is not exhaustive of the rights
and remedies that accrue to an employee upon the termination of a contract of
employment.   Whether approached from the perspective of the constitutional
dispensation and the common law or merely from a construction of the 1995

Act itself I do not think the respondent has been deprived of the common law
right that he now seeks to enforce.   A contract of employment for a fixed term
is enforceable in accordance with its terms and an employer is liable for
damages if it is breached on ordinary principles of the common law.
[23] There remains the question whether the respondent’s action for
contractual damages is nevertheless a matter that falls within the exclusive
jurisdiction of the Labour Court in terms of s 157(1).  The appellant’s counsel
submitted in the alternative that it does.
[24] 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 must 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
not what is in issue in the present case.
[25] Furthermore s 157(1) does not purport to confer exclusive jurisdiction
upon the Labour Court generally in relation to matters concerning the
relationship between employer and employee.  Some of the implications were
recently discussed by Zondo, JP in Langeveldt v Vryburg Transitional Local

Council and Others [2001] 5 BLLR 501 (LAC).  Its exclusive jurisdiction
arises only in respect of “matters that elsewhere in terms of this Act or in terms
of any law are to be determined by the Labour Court”.   Various provisions of
the 1995 Act identify particular disputes or issues that may arise between
employers and employees and provide for such disputes and issues to be
referred to the Labour Court for resolution, usually after attempts at conciliation
have failed (see for example sections 9, 24(7), 26, 59, 63(4), 66(3), 68(1), 69
etc).  In my view those are the “matters” that are contemplated by s 157(1) and
to which the Labour Court’s exclusive jurisdiction is confined (though there
may be some debate in particular cases as to their ambit:   See for example
Mondi Paper (A Division of Mondi Ltd) v Paper Printing Wood & Allied
Workers’ Union & Others (1997) 11 ILJ 84 (D); Coin Security Group (Pty) Ltd
v SA National Union for Security Officers and Other Workers & Others 1998
(1) SA 685 (C)).

[26] The only provisions relied upon in the present case in support of the
submission that the respondent’s action is such a “matter” were the provisions
of Chapter VIII.   Section 191 provides that “a dispute about the fairness of a
dismissal” may be referred to the appropriate body for conciliation.  If it is not
resolved it may thereafter be referred to the Labour Court for adjudication if the
dismissal was based on the employer’s operational requirements.
[27] Whether a particular dispute falls within the terms of s 191 depends upon
what is in dispute, and the fact that an unlawful dismissal might also be unfair
(at least as a matter of ordinary language) is irrelevant to that enquiry.  A
dispute falls within the terms of the section only if the “fairness” of the
dismissal is the subject of the employee’s complaint.  Where it is not, and the
subject in dispute is the lawfulness of the dismissal, then the fact that it might
also be, and probably is, unfair, is quite coincidental for that is not what the

employee’s complaint is about.  The dispute in the present case is not about
the fairness of the termination of the respondent’s contract but about its
unlawfulness and for that reason alone it does not fall within the terms of the
section (even assuming that the termination constituted a “dismissal” as defined
in Chapter VIII).  In those circumstances the respondent’s action is not a
“matter” that is required to be adjudicated by the Labour Court as contemplated
by s 167 (1) and the special plea was correctly set aside.
[28] The appeal is dismissed with costs which are to include the costs
occasioned by the employment of two counsel.
_______________
R W Nugent, AJA
Howie
JA)
Marais
JA)
Mpati
JA)
concur

FRONEMAN AJA
[1] I have read the judgment of Nugent AJA. To my regret I am unable to agree
with some of the reasoning and its eventual result. I shall attempt to set out my
reasons for coming to that conclusion as succinctly as I am able to.
[2] One of the primary objects of the Labour Relations Act 66 of 1995 (the Act)
is to give effect to and regulate the fundamental labour rights conferred by the
Constitution (section 1(a)). Another is to promote the effective resolution of
labour disputes (section 1(d)(iv)). The Act’s provisions must be interpreted to
give effect to its primary objects and in compliance with the Constitution
(sections 3(a) and 3(b)).  The Constitution is thus a good place to start any
enquiry on the interpretation and application of the Act. The Constitution is also

a good place to start when one looks at the common law contract of
employment. The general reason for this is that we have only one system of law
and, in the final analysis, the Constitution always determines the nature and
ambit of that law (Pharmaceutical Manufacturers Association of SA: In re Ex
parte President of the RSA 2000(2) SA 674 (CC) para [44] at 696B-C). This
remains the case even when it is found that the common law is not affected by
our new constitutional dispensation: such a conclusion derives its validity from
the very fact that the Constitution allows that kind of autonomy. Perhaps that is
stating the obvious, but it is still relatively early on in our attempt at a
constitutional democracy and lest we too easily assume that kind of autonomy
without constitutional sanction, I think it may help to reiterate the central
importance of the Constitution in that regard. Once it becomes the common
understanding of our law it may no longer be necessary to do so.

[3] Prior to the acceptance and enactment of the Constitution, our law
maintained a rigid distinction between a common law contract of employment,
which was said to have nothing to do with fairness, and a statutory labour
dispensation, which had much to do with fairness. In commenting on the inquiry
under the unfair labour practice jurisdiction of the old industrial court under the
provisions of the previous Labour Relations Act 28 of 1956 (the old Act),
Nienaber JA stated the following in National Union of Metalworkers of SA v
Vetsak Co-operative Ltd 1996(4) SA 577 (AD) at 592F-H :
“The most one can do is to reiterate that there are two sides to the inquiry whether the
dismissal of a striking employee is an unfair labour practice, the one legal, the other
equitable. The first aspect is whether the employer was entitled, as a matter of common law,
to terminate the contractual relationship between them – and that would depend, in the first
place, on the seriousness of its breach by the employee. The second aspect is whether the
dismissal was fair – and that would depend on the facts of the case. There is no sure
correspondence between unlawfulness and fairness. While an unlawful dismissal would
probably always be regarded as unfair (it is difficult to conceive of circumstances in which it
would not), a  lawful dismissal will not for that reason alone be fair….”

[4]   In my view the Constitution has a material impact on that particular
conceptual distinction between the proper domain of contract and that of the
statute, namely that the former has little to do with fairness, whilst only the
latter has (I must emphasize that I am dealing only with the contract of
employment and labour legislation – what effect the Constitution may have on
the law of contract generally, or other legislation, is not relevant for present
purposes). Section 23(1) of the Constitution1 provides that everyone has the
right to fair labour practices. It seems to me almost uncontestable that one of the
most important manifestations of the right to fair labour practices that
developed in labour relations in this country was the right not to be unfairly
dismissed. Had the Act not been enacted with the express object to give effect
to the constitutional right to fair labour practices (amongst others), the courts
would have been obliged, in my view, to develop the common law to give

expression to this constitutional right in terms of section 39(2) of the
Constitution. To the extent that the Act might not fully give effect to and
regulate that right, that obligation on ordinary civil courts remains (compare
Grogan, Workplace Law, 6th ed, at 13-15; Key Delta v Mariner [1998] 6 BLLR
647 (E) at 651G-J; Naptosa v Minister of Education, Western Cape Government
2001(4) BCLR 388 (C) at 396B-C).   It is my view of the effect of the
Constitution on our common law of employment that compels me to a different
conclusion than that of Nugent AJA in this matter.
[5]   The facts that one has to accept for the purposes of determining the
exception to the special plea are these:
The respondent entered into a contract of employment with the appellant for a
fixed period of five years. Prior to the expiry of the five-year period the
appellant purported to terminate the contract on the basis that the respondent’s

1 Section 27(1) of the interim Constitution Act 200 of 1993 had similar provisions.

position had become redundant. The respondent construed this as a
fundamental breach of contract, in the form of an unlawful anticipatory
repudiation, and purported to accept the repudiation, thereby bringing the
contract to an end. He contends that his claim, as formulated in the particulars
of claim, has nothing to do with, and does not rely on, any unfair dismissal, and
that therefore the provisions of the Act relating to dismissals in general and
unfair dismissals in particular are inapplicable.   In this I think he errs.
[6]   At this stage it may be appropriate to refer to the provisions of the Act that
are material and relevant, apart from those general provisions concerning the
Act’s primary objects and how it should be interpreted that I have already
referred to.

[7]   Section 185 provides that every employee has the right not to be unfairly
dismissed. Section 186(a) of the Act defines a dismissal for the purposes of the
Act’s application. Dismissal includes the fact that “an employer has terminated
a contract of employment with or without notice”(section 186(a)), as well as
when “an employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable for the
employee” (section 186(e)). An employee is defined in section 213 as “any
person, excluding an independent contractor, who works for another person or
for the State and who receives, or who is entitled to receive, any remuneration”.
Sections 187 to 189 make provision for, respectively, automatically unfair
dismissals, other unfair dismissals, and dismissals based on operational
requirements. Section 190 makes specific provision for the date when a
dismissal is considered to come into effect. Of particular importance is section
191(1) which prescribes the procedure “[i]f there is a dispute about the

unfairness of a dismissal…” . Section 192 deals with the onus in such
procedures whilst sections 193 and 194 prescribe the remedies for unfair
dismissals and the limits on the compensation that may be awarded in regard
thereto. Finally, section 195 provides that “[a]n order or award of
compensation made in terms of this Chapter is in addition to, and not a
substitute for, any other amount to which an employee is entitled in terms of any
law, collective agreement or contract of employment”.
[8]   In my view there can be little doubt that the facts set out in para. 5 above
clearly bring the respondent within the definition of “employee” in section 213
of the Act, and the termination of his employment within the definition of
“dismissal” in section 186. The crucial initial question is thus whether the
dispute about the termination of his contract is a dispute “about the fairness of a
dismissal” under section 191(1) or not. If it is not, the appeal must fail. If it is,

further issues need to be considered, namely whether the fact of his fixed-
term contract entitles him to “any other amount” under section 195, besides the
statutory compensation he may be entitled to, and, if so, which is the correct
forum to determine that issue.
[9]   It is important, at this stage, to emphasize that what is in issue here is
narrow and very particular: namely whether the dispute resulting in the
dismissal of an employee, following upon an unlawful repudiation of the
employment contract by his employer, is a “dispute about the fairness of a
dismissal” under section 191 of the Act. The Act does not purport to confer
jurisdiction on the dispute resolution agencies created by it in general terms. Its
structure “is rather to identify particular disputes, or issues, which may arise,
and to provide for those particular disputes or issues…” (per Nugent J in Eskom
Ltd v NUM (2000) 22 ILJ 618 (W) at 621 C-D.   Both the Labour Court and the

High Courts have grappled with the jurisdictional problems relating to these
issues and the result is not harmonious (an exhaustive reference to the cases is
to be found in Langeveldt v Vryburg Transitional Local Council & Others
[2001] 5 BLLR 501 (LAC) at 510-522)).
[10]   Is the present dispute a dispute about an unfair dismissal? It certainly
appears to me to be the case. In ordinary terms, untrammelled by legal
interpretation, it seems unfair that one party to a bargain should be allowed to
go back on his word by dismissing someone before the promised time for the
termination of his contract of employment arrives. Nienaber JA gave expression
to that underlying sentiment when, in NUMSA v Vetsak Co-operative Ltd, above
[3], he noted that it is difficult to conceive of circumstances where an unlawful
dismissal would not also be unfair. I have already indicated that in my view the
right not to be unfairly dismissed is a particular concretized form of the

constitutional right to fair labour practices. If that premise is correct then one
can only argue that the present dispute is not one about an unfair dismissal if the
provisions of the Act do not comprehensively deal with this constitutional right
and if the right not to be unfairly dismissed does not form part, in any way, of
the common law contract of employment. In my view that is not the case in
either instance.
[11]   The express provisions of the Act relating to dismissals are wide-ranging
and comprehensive in nature. The scheme of the Act in relation thereto starts
with the primary objects already referred to, namely to give effect to and
regulate the constitutional labour rights and to promote the effective resolution
of labour disputes. The first section of chapter 8 of the Act gives expression to
one of these fundamental rights by providing that every employee has the right
not to be unfairly dismissed (section 185). The definition of “dismissal” of an

employee goes beyond the mere termination of employment to include those
instances where a reasonable expectation of further employment exists (section
186(b)) and instances of constructive dismissal(section 186(e)), of which the
acceptance by an employee of an unlawful repudiation of the contract by the
employer is but an example (Jooste v Transnet Ltd (1995) 16 ILJ 629 (LAC) at
636-638).   The further sections then regulate how dismissal disputes are to be
resolved and set out the remedies available in those disputes. Included amongst
them is the right to enforce a bargain which entitles an employee to any amount
greater than the statutory compensation allowed for under the Act (section 195).
[12]   It is true that the Act does not define what an “unfair” dismissal is, but
that is understandable given the many forms that unfairness can take and the
jurisprudence that has already crystallized on this issue under the unfair labour
practice provisions of the old Act. It is also true that the Act has drastically

interfered with a number of aspects of the common law contract of
employment – a fact readily acknowledged by Mr. Gauntlett, who, together with
Mr. Halgryn, appeared for the appellant. The result, he argued, is that in some
instances the position of employees is enhanced and in others the position of
employers. There may be a debate about who, on balance, is better off in the
end, but if there is complaint in that regard the constitutionality of the
restrictions must be tested under section 36 of the Constitution ( compare
Naptosa v Minister of Education, above, [4], at 395 E-F ). Generally speaking,
however, employees have gained much that they did not previously have. Their
primary remedy now is reinstatement, which must be ordered unless specified
conditions exist (sections 193(1)(c) and 193(2)). It is in this context, so Mr.
Gauntlett submitted, that the statutory remedies, including the limits set to the
amount of compensation in section 194 of the Act, must be viewed.

[13]   Neither side, however, referred to the provisions of section 195 in their
written heads of argument. Its terms offer further support, in my view, of the
Act’s purpose to deal comprehensively in Chapter 8 with all dismissals from
employment of employees under the Act (but it does not help the appellant’s
contention that compensation under section 194 is all that the respondent is
entitled to). It may be an objectionable feature of the statute if it deprives
employees, on dismissal, of the right to enforce bargained terms in their
contracts of employment that would put them in a better financial position than
that which the statute itself provides for. Section 195 ensures that this may not
occur (compare the similar approach in section 4 of the Basic Conditions of
Employment Act 75 of 1997 (the BCE Act) ).
[14]   The judge in the court below characterized the issue to be decided in
broad and general terms as “whether or not the ordinary civil courts, having

regard to the LRA, retained their jurisdiction to adjudicate common law
contractual breaches of agreements of employment”. From what I have already
stated it should be clear that I consider the issue to be much narrower and more
specific. He also set store by the fact that there was no express exclusion in the
Act of the common law claim to damages and that the presumption against
taking away existing rights operated against an interpretation that the Act
impliedly did so. In my view these considerations are misplaced. The Act does
not purport to change the pre-constitutional common law by expressly
mentioning each and every aspect of it that it wishes to change. It deals with
specific issues and states expressly what the law now is in regard to those
issues. To determine to what extent the common law was changed by that one
has to compare these express provisions with what the common law was and
determine the extent of the changes wrought by the Act. The presumption
against taking away existing rights also presupposes a common law contract of

employment free of the spirit and values underlying constitutionalised labour
rights (The use of common law presumptions in such a context may prove
problematical – compare J R de Ville, Constitutional & Statutory Interpretation,
Cape Town, 2000, at 62-69). . 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 basic statutory entitlements, as well as
for a right not to be unfairly dismissed.   I happen to think that this is what the
Act (and the BCE Act in a different context) achieves, albeit perhaps not to the
fullest extent possible.  However, even if I am wrong in viewing the Act as
dealing comprehensively with these issues, I am of the view that the common
law contract of employment must then give some form of expression to that
fundamental right not to be unfairly dismissed.  As soon as the common law
does give some expression to that right, I have the same kind of difficulty as

Nienaber JA had in National Union of Metalworkers of SA v Vetsak Co-
operative Ltd, above [3], namely to conceive how an unlawful dismissal would
not also be an unfair dismissal. And if such a dismissal is unfair any dispute
about it falls squarely within the opening words of section 191(1) of the Act.
In short, one of the demands of the Constitution on our common law of
employment is that it includes a right to a fair dismissal.  Dismissal upon an
unlawful breach of contract by an employer is an unfair dismissal.  And the Act
deals fully with the consequences of an unfair dismissal.
[15]   The respondent’s claim is capable of being seen as a claim for a monetary
benefit that he bargained for and is entitled to under section 195 of the Act in
addition to the compensation that may be awarded under section 194, namely as
damages in lieu of specific performance (compare De Wet and Van Wyk,
Kontraktereg en Handelsreg, 5th ed, 208-212). For present purposes it is not

necessary to decide whether his claim comfortably fits within the traditional
formulation of that kind of claim under the common law of contract, or whether
some adaptation will be necessary to enable it to be so accommodated, but only
to determine which forum is competent to determine that issue.
[16]   Once it is accepted that this particular dispute is one about the fairness of
a dismissal it follows that it must be dealt with in accordance with the procedure
set out in section 191 of the Act, a procedure which in one way or another ends
up with the Labour Court (and on appeal, the Labour Appeal Court) having the
final say. The Labour Court has the competence to award damages (section
158(1)(a)(vi) ), if that is what is called for under section 195 of the Act. The
present case thus becomes a matter to be determined by the Labour Court in
terms of the Act and also, by virtue of the provisions of section 157(1) of the
Act, a matter to be determined exclusively by that court.

[17]   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 court does not
enjoy without specific statutory authority.

[18]   In my view, therefore, the exception to the special plea should have been
dismissed. I would allow the appeal with costs, including the costs of two
counsel, and substitute the order in the court below with the following:
“The exception is dismissed. The defendant’s special plea is upheld, and the
plaintiff’s claim dismissed, with costs”.
___________________
FRONEMAN AJA