Makhanya v University of Zululand - LexisNexis South Africa

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24The Second Unsound Proposition: A high court that has jurisdiction toconsider a claim for the enforcement of a right may thwart the assertion ofthat right by declining to exercise its jurisdiction.[58] This was the basis upon which the court below upheld the objection inthis case. It is clear from the particulars of claim, when compared with thefactual allegations made in the special plea, and even more so when thoseallegations are read in conjunction with the award of the arbitrator (whichwas attached to the plea), that the claim that was before the high court, andthe claim that was pursued before the CCMA, are not the same claims(contrary to what is alleged in the special plea). Indeed, that was freelyacknowledged by counsel (which in itself undermined the argument that sheinitially presented as I outlined it above). The claim that is now before uswas not even capable of being pursued and ruled upon by an arbitrator of theCCMA, because it is not for the enforcement of an LRA right.[59] The claim that was pursued before the CCMA was a claim to enforcethe right of an employee not to be dismissed unfairly (what I have called anLRA right) which is enforceable only in a Labour Forum. The claim in thiscase asserts for enforcement a right emanating from the common law toexact performance of a contract. It is plain that the high courts have thepower to consider claims for the enforcement of employment contracts (asdoes the Labour Court).
25[60] The court below quoted a passage from the judgment of Ngcobo J,writing for the majority in Chirwa, 30 which it construed to mean thatMakhanya was put to an election as to which claim to enforce, and that hiselection to pursue one claim (the claim in the CCMA) meant that as a matterof ‘judicial policy’ the court could stop him from pursuing the other claimby simply declining to exercise its jurisdiction to consider the claim. Takento its logical conclusion the approach that the court below adopted wouldmean that the claim would not be capable of being adjudicated upon at all byany court, not even to be dismissed on its merits. It is to be left wandering,unresolved, in some sort of limbo, for want of a court to at least consider it,if only thereafter to dismiss it.[61] As I pointed out earlier, it is true that a litigant who has a single claimthat is enforceable in two courts that have concurrent jurisdiction mustnecessarily make an election as to which court to use. In that respect the lawspecifically allows for ‘forum shopping’ by allowing the litigant that choice.But it is altogether different when a litigant has two distinct claims, one ofwhich may only be enforced in one court, and the other of which may beenforced in another court, which is how the court below applied it in thiscase. 3130Para 85: ‘Ordinarily and as a matter of judicial policy, even if the High Court had concurrent jurisdictionwith the Labour Court in this matter, it should be impermissible for a party to initiate the process in theCCMA alleging one cause of action, namely unfair labour practice, and halfway through that process allegeanother cause of action and initiate proceedings in the High Court. It seems to me that where two courtshave concurrent jurisdiction, and a party initiates proceedings in one system alleging a particular cause ofaction, the party is bound to complete the process initiated under the system that she or he has elected.Concurrent jurisdiction means that a party must make an election before initiating proceedings. A partyshould not be allowed to change his or her cause of action mid-stream and then switch from one courtsystem to another. In effect the applicant is inviting us to countenance such a practice. It is an invitationwhich should in my view be firmly rejected.’31The passage I have referred to fails to distinguish those two distinct situations and treats them,incorrectly, as if they are interchangeable.
Page 1 and 2: THE SUPREME COURT OF APPEALREPUBLIC
Page 4 and 5: 4[4] Whatever explanation is given
Page 6 and 7: 6ratio for the order that was made.
Page 8 and 9: 8ordinary power to consider claims
Page 10 and 11: 10[20] Much the same happened to Ms
Page 12 and 13: 12excluding the ordinary power of t
Page 14 and 15: 14[31] The disposal of a jurisdicti
Page 16 and 17: 16Training, Eastern Cape, 23 and th
Page 18 and 19: 18TWO CLAIMS ARISING FROM COMMON FA
Page 20 and 21: 20occurred), could a plea of res ju
Page 22 and 23: 22present purposes. Upon that suppo
Page 26 and 27: 26[62] The approach taken by the co
Page 28 and 29: 28should be the subject only of cla
Page 31 and 32: 31court found itself able to find t
Page 33 and 34: 33what constitutes the ratio of a c
Page 35 and 36: 35[88] While the ratio of a decisio
Page 37 and 38: 37CONCLUSIONS[94] To summarise, I a
Page 39 and 40: 39agreement had not been establishe

Makhanya v University of Zululand - LexisNexis South Africa

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