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IN THE LABOUR COURT OF SOUTH AFRICA

Case Number: J324/98

In the matter between:

KOPANO RAMMEKWA Applicant

and

BOPHUTHATSWANA BROADCASTING

CORPORATION 1st Respondent

SOUTH AFRICAN BROADCASTING CORPORATION 2nd Respondent

Presiding Judge:

Landman J

On behalf of Applicant:

Advocate D Mpofu instructed by Ramphele Attorneys

On behalf of 1st and 2nd Respondents:

Mr T J Bruinders instructed by Madhlopa Attorneys

Date and Place of Hearing:

27 February 1998 Braamfontein

JUDGMENT

1. Kopano Rammekwa, a senior news reporter, was employed by the BBC (the Mmbatho version ie, the Bophuthatswana Broadcasting Corporation) which in law appears to be succeeded by the SABC (the South African Broadcasting Corporation). She was born to South African parents but is in law a foreigner. She required a work permit to be employed by the BBC. This permit has been renewed several times.

2. The BBC terminated her services by notice dated 17 November 1997 on the grounds that her work permit was to expire on 31 December 1997. There is a dispute about whether the date of expiry was extended to September 1998 and whether the BBC knew about this but for the reasons expounded in Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623(A), I must accept the respondent’s version.

3. After the termination of her services (which may not be a “dismissal” as defined in s 186 of the Labour Relations Act 66 of 1995. Cf Schmahmann v Concept Communications Natal (Pty) Ltd [1997] 8 BLLR 1092 (LC)) she referred a dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA). An attempt to conciliate the dispute was unsuccessful and the applicant requested the CCMA to arbitrate the dispute.

4. Applicant’s water and power supply was cut while she was residing in the flat. This occurred early in February 1998. The BBC at first denied that it had cut off the supplies (later in an affidavit it admitted that it had done so and averred that it had restored the power and water supplies). This triggered the present application.

5. When this matter was heard on 20 February 1998 I postponed the matter to allow the BBC to file a more detailed answer. I however ordered the respondents to restore the power and the water supply in the interim and reserved the costs.

6. On 27 February 1998 the matter was argued. In the meantime the BBC filed a further affidavit and the applicant replied. No affidavit was filed by the SABC. However Mr Bruinders appeared for both the BBC and the SABC on this occasion. Mr Mpofu again appeared for the applicant.

7. The applicant seeks the following relief:

“1. That the forms and rules provided for in the Rules of the above Honourable Court be suspended with and that the application be disposed of as one of urgency in terms of Rule 8;

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2. Interidicting and prohibiting the Respondents from evicting the Applicant;

3. Prohibiting and restraining the Respondent’s from interfering with the lawful occupation of the premises by the Applicant;

4. Ordering the Respondents to reinstate electricity and water supply to the Applicants’ premises;

5. Ordering the Respondents to reinstate the Applicants (sic) in their positions of employment pending the finalisation of the labour dispute between the parties;

6. Ordering the Respondents to pay the cost of this application, the one paying the other to be absolved.”

8. It was argued that the matter was not urgent. The denial of water and electricity and its consequences is sufficient to found urgency. This objection cannot be sustained.

9. The next attack was on the jurisdiction of the court to grant a spoliation mandamus. Mr Bruinders submitted that this court was not endowed with jurisdiction in terms of the Act to grant such an order. He submitted that if this court had ancillary jurisdiction, that jurisdiction was confined to matters which are adjudicable in the Labour Court and not to matters which are merely arbitrable. See Afrox Ltd v SACCAWU (2) (1997) 18 ILJ 406 (LC) at 413.

10. Mr Mpofu sought to counter this argument by submitting that the facts pertaining to the dismissal are such that the applicant could seek relief in this court on the basis of arbitrary discrimination against her as a foreign national and on account of her trade union affiliation. This argument cannot succeed. In the first place the applicant has elected to have the dispute arbitrated by the CCMA. If, however, she has not made an election, she has not filed a statement of case in this court nor does she say that she intends to do. This matter must therefore be decided (subject to my remarks about the “dismissal”) on the basis that the CCMA has jurisdiction to arbitrate the dispute.

11. I do not intend dealing at length with the prayers for a spoliation order. Considerations of justice were such that the matter could not be postponed unless some relief was granted. I am of the opinion that Mr Bruinders’s submission is correct and that this court cannot grant a spoliation order, no matter how desirable it may be to do so. My reasons for coming to this conclusion may be briefly stated. The jurisdiction of the court is a statutory one. I confine my remarks to jurisdiction on the basis of a cause of action. This jurisdiction can arise only in terms of the Act or another statute. There is no provision in the Act to grant a spoliation order even though in some instances eg s 67(3) the court may safeguard a property right arising out of the employment relationship. A further compelling reason for coming to this conclusion stems from the following: The jurisdiction of this court is either concurrent with that of the High Court or it is exclusive. See s 157 of the Act. Therein nothing in between: The concurrent jurisdiction, ie jurisdiction shared with the High Court, is that referred to in s 157(2). That is not applicable in casu. Therefore, if the jurisdiction of this court to grant a spoliation order exists, it must be an exclusive one. It must be clear that the legislature intended to oust the jurisdiction of the High Court. This is not lightly inferred. See Mondi Paper (a division of Mondi Limited) v Paper, Printing, Wood and Allied Workers Union and Others (unreported, High Court). I cannot come to the conclusion, on a proper reading of the Act, that the jurisdiction of the High Court in spoliation matters involving an employer and an employee has been taken away from the High Court. The applicant is therefore not entitled to such an order.

12. The question which now arises is whether this court has jurisdiction to grant interim relief prohibiting the eviction of the applicant until the arbitration is finalised. If so, the spoliation order would be incorporated in such relief, even though the requirements for such an order are narrower. In a spoliation application the applicant need only show peaceful possession and an interference with that possession. Is the applicant entitled to an interim interdict protecting the status quo pending the outcome of arbitration by the CCMA? Section 157(5) is clear. A line is drawn between arbitration and adjudication and, subject to certain leeway, this separates the jurisdiction of the CCMA from that of the Labour Court. The Labour Court and the CCMA are not however strangers. They are both created in terms of the same Act with similar purposes, inter alia, of doing justice between employer and employee, even though they operate by different means. Prima facie there seems every justification for a mechanism to maintain the status quo in an employment relationship particularly when reinstatement and the cap on compensation will not allow an injustice to be remedied retrospectively. This may not be the case here. The CCMA does not have the jurisdiction to grant any interim relief to prevent harm and loss which might flow from a dismissal before arbitrating the dispute. Does the Labour Court have such jurisdiction? The answer depends, to a degree, on how one is obliged to interpret s 158(1)(a)(iii) of the Act which empowers this court to remedy a wrong. Is this a power or does it confer jurisdiction? Generally jurisdiction is to be found principally in s 157 but, for instance, s 158(1)(e) of the Act confers jurisdiction and not simply a power on the court.

13. I am prepared to assume here, as I did in SACCAWU v Shoprite Checkers (Pty) Ltd [1997] 10 BLLR (LC), without deciding, that this court has jurisdiction to maintain or restore the status quo pending the outcome of arbitration proceedings by the CCMA. An applicant would have to show that the requirements for interim relief are met.

14. In this case it seems to me that the applicant does not meet the requirements for an interim interdict. An interdict is a remedy which should not be granted unless there is no appropriate alternative remedy. There is in this instance, thinking away the spoliation application, an alternative remedy namely arbitration. There is no evidence why this arbitration cannot be disposed of on an urgent basis. There is no indication of how long it will take for the BBC or the SABC to obtain an eviction order in the High Court nor can it be safely assumed that the High Court will not be disposed to stay the application for eviction pending the outcome of arbitration. In the premises the application must fail.

15. It follows from s 157(5) of the Act that the CCMA and only the CCMA may determine whether the applicant is to be reinstated. Her prayer for reinstatement must be dismissed.

16. I turn to the costs of the application including the costs of 20 February 1998 which were reserved. In awarding costs I must have regard to the dictates of law and fairness. I must exercise a judicial discretion. The fact of the matter is that this entire application was precipitated by the BBC cutting off the power and water supply without resorting to the law. According to the applicant’s replying affidavit the flat remained uninhabitable as at 26 February 1998 as the water and electricity had not been restored. Although I am obliged to accept the BBC’s version that orders had been given to restore the effects of the spoliation, this has not been effected as at 26 February 1998. Even though I am not judging the spoliation I must take some account of the inroads which spoliations make in regard to law and order generally and in necessitating the present unsuccessful application. In my view this is a case where each party should pay their own costs.

Costs were sought for the SABC. In my opinion it was prudent for the applicant to have joined the SABC in view of Former States Broadcasting Reorganisation Act 91 of 1996 which enacted the legal mechanisms for transferring the rights and duties of the BBC to the SABC. This is said to have been implemented on 31 December 1997. There is of course then the question, why has the BBC been cited and why does it defend the application eo nomine? I am told that this is the subject of a dispute between the respondents which does not require my attention.

17. In the result the application is dismissed. Each party is to pay their own costs including the reserved costs.

SIGNED AND DATED AT DURBAN THIS 3RD DAY OF MARCH 1998.

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A A LANDMAN

JUDGE OF THE LABOUR COURT

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