THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case : 97/2006
REPORTABLE

In the appeal between:

BOXER SUPERSTORES MTHATHA

First appellant
CHAIRMAN OF DISCIPLINARY HEARING, Second appellant
BOXER SUPERSTORES

and

NOMAHLUBI LORRAINE MBENYA

Respondent

Before:
Cameron JA, van Heerden JA, Jafta JA, Hancke
AJA, Theron AJA
Heard:

Tuesday 22 May 2007
Judgment:
Thursday 31 May 2007

Jurisdiction – high court – termination of employment – employee
claiming relief because ‘unlawful’ – not falling within exclusive
jurisdiction of labour courts – high court has jurisdiction –
jurisdictional challenge dismissed

Neutral citation: Boxer Superstores Mthatha v Mbenya [2007]
SCA 79 (RSA)

CAMERON JA:

[1] This is an appeal from a decision of Peko ADJP in the High
Court at Mthatha, dismissing an objection to the court’s
jurisdiction.  The dispute arose on 7 December 2004, when the
first appellant (the employer)1 terminated the employment of
the respondent, Ms Mbenya (the employee).  Seven months
later – well outside the time limits for challenging an unfair
dismissal under the Labour Relations Act 66 of 1995 (‘the
LRA’) – the employee applied to the high court for (a) an order
that the disciplinary hearing preceding her dismissal ‘be set
aside’ and its outcome be declared ‘unlawful’ and be set aside;
(b) a declarator that her dismissal was ‘unlawful’ and of ‘no
force’; (c) re-instatement to her former position ‘with all salaries
and benefits to which she was entitled up to the date of her
purported dismissal’ (alternatively an equivalent position ‘with
all the benefits as if nothing has happened to her’); (d) back-
pay; (e) costs.
[2] The employer in response raised a point of law in terms of
Uniform Rule 6(5)(d)(iii),2 contending that the high court –

1 The second appellant is the chairman of the disciplinary inquiry that determined the
dismissal.
2 Supreme Court Act 59 of 1959, Uniform Rule of Court (6)(5)(d) ‘Any person opposing the
grant of an order sought in the notice of motion shall – … (iii) if he intends to raise any
question of law only […] deliver notice of his intention to do so, within the time stated in the
preceding subparagraph [ie, within fifteen days of notifying the applicant of his intention to

‘lacks jurisdiction to entertain the application for the relief as sought in the
Notice of Motion in that the provisions [of] the Labour Relations Act 66 of
1995 dictate that the High Court does not retain jurisdiction to adjudicate
on a dispute of the nature alleged by the applicant.’
[3] In her founding affidavit the employee asserted that her
dismissal was substantively unfair (there being no grounds for
it), as well as procedurally unfair (in that at the disciplinary
hearing, where she appeared with a shop steward representing
her, she was not asked to plead guilty or not guilty, and was put
on her defence, and cross-examined, without any evidence
being proffered against her).  For these reasons, she claimed,
her dismissal was ‘unlawful’.  She added that ‘my rights have
been violated’ by the respondents, submitting that ‘everyone is
equal before the law and has the right to equal protection of the
law’,3 and noting that ‘everyone has the right to have any
dispute that can be resolved by the application of law decided
in a fair public hearing before court’,4 and that she had been
advised that the high court has jurisdiction to hear the matter.
[4] The employer’s objection to the application challenges its
viability in the forum the employee has chosen.  As yet there is
no answering affidavit, and we must at this stage take the

oppose the application], setting forth such question.’
3 Echoing s 9(1) of the Bill of Rights.

allegations in the founding affidavit to be established facts,5
determining whether, if they are true, the high court has
jurisdiction.  In this task, the employee was unrepresented
before us, and we invoked the assistance of the Free State
Society of Advocates, from whose ranks Mr Venter appeared
as amicus curiae.  We are grateful to him for his able
assistance.
[5] The exclusive jurisdiction of the labour court has been carefully
circumscribed in recent years.  Section 157(1) of the LRA
provides that subject to the Constitution and to the Labour
Appeal Court’s jurisdiction, and except where the LRA itself
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’.  Despite the seeming breadth of this provision, it is now
well established that –
(i) (as Peko ADJP observed in dismissing the jurisdictional
objection) section 157 does not purport to confer exclusive
jurisdiction on the labour court generally in relation to matters
concerning the relationship between employer and employee

4 Echoing s 34 of the Bill of Rights.
5 LTC Harms Civil Procedure in the Supreme Court (1990, with updates to April 2007) para
B6.35, p B-52.

(Fedlife Assurance Ltd v Wolfaardt),6 and since the LRA affords
the labour court no general jurisdiction in employment matters,
the jurisdiction of the high court is not ousted by s 157(1)
simply because a dispute is one that falls within the overall
sphere of employment relations (Fredericks v MEC for
Education and Training, Eastern Cape);7
(ii) the LRA’s remedies against conduct that may constitute an
unfair labour practice are not exhaustive of the remedies that
might be available to employees in the course of the
employment relationship – particular conduct may not only
constitute an unfair labour practice (against which the LRA
gives a specific remedy), but may give rise to other rights of
action: provided the employee’s claim as formulated does not
purport to be one that falls within the exclusive jurisdiction of
the labour court, the high court has jurisdiction even if the claim
could also have been formulated as an unfair labour practice
(United National Public Servants Association of SA v Digomo
NO);8

6 2002 (1) SA 49 (SCA) para 25, per Nugent AJA for the majority.
7 2002 (2) SA 693 (CC) para 40, per O’Regan J for the Court (endorsing Fedlife at para 38).
8 (2005) 26 ILJ 1957 (SCA) paras 4-5, per Nugent JA for the Court.

(iii) an employee may therefore sue in the high court for a
dismissal that constitutes a breach of contract giving rise to a
claim for damages (as in Fedlife);
(iv) similarly, an employee may sue in the high court for
damages for a dismissal in breach of the employer’s own
disciplinary code which forms part of the contract of
employment between the parties (Denel (Edms) Bpk v
Vorster).9
[6] In these cases, the exclusive jurisdiction of the labour court
does not preclude the employee’s recourse to the high court.
This case pushes the boundary a little further.  The novel
question it raises is whether an employee may sue in the high
court for relief on the basis that the disciplinary proceedings
and the dismissal were ‘unlawful’, without alleging any loss
apart from salary.  In my view, the answer can only be Yes.
This Court has recently held that the common law contract of
employment has been developed in accordance with the
Constitution to include the right to a pre-dismissal hearing (Old
Mutual Life Assurance Co SA Ltd v Gumbi).10  This means that
every employee now has a common law contractual claim – not

9 2004 (4) SA 481 (SCA) paras 15-16.
10 [2007] SCA 52 (RSA) paras 5-8, per Jafta JA for the Court.

merely a statutory unfair labour practice right – to a pre-
dismissal hearing.  Contractual claims are cognisable in the
high court.  The fact that they may also be cognisable in the
labour court through that court’s unfair labour practice
jurisdiction does not detract from the high court’s jurisdiction.
[7] The sole issue in Gumbi, as in this case, was a challenge to a
dismissal arising from a complaint about the fairness of pre-
dismissal disciplinary proceedings.  Although the employer
there abandoned its initial jurisdictional challenge to the high
court’s competence to hear the case,11 the high court and
indeed this Court would have been obliged to raise the lack of
jurisdiction had the matter fallen within the labour court’s
exclusive statutory competence.  In my view, by adjudicating
the employee’s claim, the courts in Gumbi implicitly decided the
question at issue in this case.
[8] It would moreover be illogical to hold that an employee can
claim damages for breach of the common law contract of
employment in the high court – as in Fedlife and Denel – but
cannot claim (as is inter alia here sought) a declarator.
[9] And indeed the employee here was careful to formulate her
claim on the basis that her dismissal was ‘unlawful’.  She did

not complain about its unfairness; nor did she invoke the
benefits the LRA confers on employees through the protection
of the labour court’s unfair labour practice jurisdiction.  It is true
that the relief she claimed went far beyond a declarator,
including reinstatement with back-pay.  In Transnet Ltd v
Chirwa,12 I observed that the employee’s insistence on
approaching the ordinary courts – when the LRA afforded
ample remedies, including retrospective reinstatement and
compensation if the employer failed to discharge the burden of
proving that the dismissal was both procedurally and
substantively fair – could involve a penalty regarding relief.
The ordinary courts should be careful in employment-related
matters not to usurp the labour courts’ remedial powers, and
their special skills and expertise.13
[10] That means that even if the employee’s factual allegations
prove true, she may well not ultimately be entitled to the relief
she seeks, particularly since according to her founding papers
she had an internal right to appeal, which she failed to
exercise.  At best she may be entitled (subject to the

11 See Old Mutual v Gumbi para 1.
12 2007 (2) SA 198 (SCA) paras 46-47 and 66-67 (Mpati DP concurring).
13 Because the other judges (Mthiyane JA, with whom Jafta JA concurred, and Conradie JA)
concluded that the appeal should be allowed, thereby refusing the employee relief altogether,
it was not necessary for them to consider this point.

unexhausted appeal process) to have the hearing set aside,
and the matter remitted to the employer.  That however is not
at present the pivotal issue, since the employer’s objection
involved a challenge to whether the high court had jurisdiction
to entertain the application at all, or to afford the employee any
portion of the relief she sought.
[11] In argument, counsel for the employer conceded that the
LRA does not confer jurisdiction on the labour courts over
unfair dismissals without more, since these are first subject to
compulsory conciliation and arbitration.  He nevertheless
contended that though the employee professed to base her
case on the lawfulness of her dismissal, in substance her
complaint was about its fairness – over which the labour courts
ultimately have exclusive jurisdiction.  Accordingly, he argued,
the employee was in truth invoking the unfair labour practice
and the labour court’s remedial jurisdiction, which in terms of s
191 of the LRA fall squarely within the labour court’s exclusive
competence.14  This Court should, he urged, therefore give
effect to the substance, rather than the form, of the employee’s
case.

14 LRA s 191(1) governs disputes ‘about the fairness of a dismissal, or a dispute about an
unfair labour practice’.

[12] This characterisation may be correct, so far as it goes, but it
leaves out of account the fact that jurisdictional limitations often
involve questions of form, and that the employee in this case,
as already mentioned, formulated her claim carefully to exclude
any recourse to fairness, relying solely on contractual
unlawfulness.  In Fedlife, Nugent AJA pointed out:
‘Whether a particular dispute falls within the terms of s 191 depends on
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 of the 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.’15
[13] That applies here.  The appeal must in my view fail and the
jurisdiction of the high court must be upheld.  Although the
employee was unrepresented before us, her attorney was still
on record.  Since that may have entailed costs, the appeal
must be dismissed with costs.

E CAMERON

JUDGE
OF
APPEAL

15 2002 (1) SA 49 (SCA) para 27.

CONCUR:
van Heerden JA
Jafta JA
Hancke AJA
Theron AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
Thursday 31 May 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

Boxer Superstores Mthatha v Mbenya [2007] SCA 79 (RSA)

In a judgment delivered today, the Supreme Court of Appeal has
ruled that an employee may approach the High Court to declare a
dismissal unlawful on the basis that the pre-dismissal hearing was
unfair.

The case involved the limits of the exclusive jurisdiction of the
labour courts under the Labour Relations Act 66 of 1995 (the
LRA).  Boxer Superstores argued that in substance Ms Mbenya, its
former employee, was complaining about the unfairness of her
dismissal, even though she claimed in her application that the
dismissal was ‘unlawful’.

The labour courts have exclusive jurisdiction under the LRA to
adjudicate on and give relief for unfair labour practices, while the
ordinary courts have jurisdiction to rule on the lawfulness of
breaches of contract.

The SCA had previously ruled that dismissed employees could
approach the High Court to claim damages arising from unlawful
dismissals, or from unlawful breaches of the employer’s own
disciplinary code under a contract of employment.

In the Boxer Superstores case, the SCA has now held that the
employee can approach the High Court even when she does not
claim damages, but seeks only a declarator in relation to the pre-
dismissal hearing.

However, the SCA warned that the employee’s insistence on
approaching the ordinary courts – when the LRA afforded ample
remedies through the labour courts, including retrospective
reinstatement and compensation if the employer failed to
discharge the burden of proving that the dismissal was both
procedurally and substantively fair – could involve a penalty in the
relief that the High Court might grant.

The ordinary courts should be careful in employment-related
matters not to usurp the labour courts’ remedial powers, and their
special skills and expertise.

This means that the employee may well not ultimately be entitled
to the relief she seeks, particularly since according to her founding
papers she had an internal right to appeal, which she failed to
exercise.  At best she may be entitled (subject to the unexhausted
appeal process) to have the hearing set aside, and the matter
remitted to the employer – and not get reinstatement or back-pay,
which are remedies special to the labour courts and their unfair
labour practice jurisdiction.