One of the first requirements that has to be considered when a dispute is brought before an adjudication forum, is whether that particular forum has jurisdiction over the parties and in the matter. Jurisdiction refers to the competency of a forum (e.g Court) to hear, make a binding decision and hand down a competent sanction in the matter. Therefore, before the adjudication forum hears the matter, it must ascertain whether it has jurisdiction in the first place before it proceeds.

Due to the foregoing, labour adjudication forums such as the CCMA, Labour Court and Labour Appeal Court generally have jurisdiction over employment related matters as was held in the matter of Chirwa v Transnet Limited and Others [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC).

Further, the Labour Court has exclusive jurisdiction in certain matters as per the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA). However, Section 157 (2) of the LRA provides for concurrent jurisdiction of the Labour Court and the High Court over certain matters.

157. Jurisdiction of Labour Court

(1) 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.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from –

(a) employment and from labour relations;

(b) any dispute over the constitutionally of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and

(c) the application of any law for the administration of which the Minister is responsible.

Similarly, section 77 (3) of the BCEA provides that the Labour Court and the civil Courts (e.g High Court) have concurrent jurisdiction with regards to matters concerning a contract of employment whether or not a basic condition of employment is a term within that contract. A case in point would be the case of Old Mutual Limited and Others v Moyo and Another (A5041/19) [2020] ZAGPJHC 1; [2020] 4 BLLR 401 (GJ); [2020] 2 All SA 261 (GJ); (2020) 41 ILJ 1085 (GJ) (14 January 2020) whereby the South Gauteng division of the High Court was able to adjudicate on a case that is labour related. The case was premised on whether the insurer had lawfully terminated the contract of employment of its former CEO (Moyo).

With regards to jurisdiction, the Courts have followed an approach that favours using the pleadings as opposed to merits of the case, as the basis for determination. In Lewarne v Fochem International (Pty) Ltd (1073/18) [2019] ZASCA 114; (2019) 40 ILJ 2473 (SCA); [2020] 1 BLLR 33 (SCA) (18 September 2019) it was held that the pleadings contain the basis of the claim upon which the competence of the Court to hear the matter are raised.

Similarly, in the case of Gcaba v Minister of Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) and the case of Baloyi v Public Protector and Others [2020] ZACC 27; 2021 (2) BCLR 101 (CC); [2021] 4 BLLR 325 (CC); (2021) 42 ILJ 961 the apex Court confirmed the approach of basing the decision of the Court with regards to jurisdiction upon determination of the pleadings as opposed to merits.

Upon proper analysis of the Notice of Motion and Founding Affidavit of the Applicant before the High Court, on appeal in the case of National Prosecuting Authority v Public Servants Association obo Meintjies and Others; The Minister of Justice and Correctional Services and Director-General: Department of Justice and Constitutional Development v Public Servants Association obo Meintjies and Others (353/2020; 354/2020) [2021] ZASCA 160 (17 November 2021), the Supreme Court of Appeal (SCA) upheld that the dispute had been related to unfair labour practices and therefore, the High Court had no jurisdiction and ought to have struck the matter off its roll.

The dispute related to the introduction and application of the Occupational Specific Dispensation (OSD) with regards to remuneration for Deputy Directors of Public Prosecution (DDPPs) and Chief Prosecutors (CPs).

The pleadings of the Public Servants Association sought specific performance while NOT relying on individual employment contracts of its members, but on the premise that the NPA had failed to implement the OSD in respect of DDPPs and CPs which, amounted to an unfair labour practice and ought to have been dealt with in terms of the LRA as per section 191. Therefore, the High Court had no jurisdiction to hear the matter, and it ought to have struck the mater off the roll.

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