Edward Mbuyiselo Makhanya v The University of Zululand

Professor Makhanya was employed by the University of Zululand. The University purported to terminate his contract of employment in breach of its terms. Despite this, Makhanya continued to render his services (or at least tendered to do so). The University did not pay him his remuneration and other moneys to which the contract entitled him. Makhanya instituted an action in the High Court at Durban claiming orders compelling the University to pay. The University raised a special plea challenging the jurisdiction of the High Court, arguing that because Makhanya had previously pursued a claim for unfair dismissal in the CCMA (Commission for Conciliation, Mediation and Arbitration), which failed, the High Court had no jurisdiction to consider his contractual claim. The University also raised a defence of res judicata based on the CCMA arbitration award. The High Court upheld the jurisdictional objection and dismissed Makhanya's claim. Makhanya appealed to the Supreme Court of Appeal with leave.

• Whether the High Court has jurisdiction to consider a claim for enforcement of a contract of employment where the employee had previously pursued a claim for unfair dismissal under the Labour Relations Act 1995 (LRA) in the CCMA
• The relationship between claims for enforcement of LRA rights and claims for enforcement of common law contractual rights arising from the same employment termination
• Whether pursuing one claim (LRA right) prevents an employee from subsequently pursuing a different claim (contractual right) arising from the same facts
• Whether an employee can assert multiple rights arising from employment termination in different forums
• The proper interpretation of the decision in Chirwa v Transnet Ltd and its ratio decidendi
• The meaning of 'jurisdiction' and whether the merits of a claim can determine jurisdiction

The appeal was upheld with costs. The order of the High Court was set aside. Both special pleas (the jurisdictional plea and the res judicata plea) were dismissed with costs. The action was postponed sine die and the matter was remitted to the High Court for disposal of the remaining issues in the action.

The binding principles established are: (1) A High Court has jurisdiction to consider a claim for enforcement of an employment contract, regardless of whether the employee has previously pursued (or could pursue) a claim for enforcement of LRA rights arising from the same facts. (2) The jurisdiction of a court to consider a claim cannot depend on whether the claim is good or bad in law - this would offend the immutable rule of logic that the power to answer a question cannot depend on the answer to that question. (3) An employee may have multiple distinct rights arising from termination of employment: LRA rights (enforceable exclusively in Labour Forums), common law contractual rights (enforceable in High Court or Labour Court concurrently), and constitutional rights (enforceable in High Court or Labour Court concurrently). (4) Pursuing one claim does not preclude pursuing a different claim arising from the same facts, as they are distinct causes of action. (5) A court may not thwart the assertion of a right by denying access to a forum that has been designated by law to hear such claims - this would violate section 34 of the Constitution. (6) Section 77(3) of the Basic Conditions of Employment Act expressly preserves the High Court's jurisdiction to hear matters concerning contracts of employment. (7) Section 157(2) of the LRA confers concurrent jurisdiction on the Labour Court regarding constitutional rights but does not divest High Courts of their constitutional jurisdiction in such matters.

The Court made several important observations obiter: (1) The ratio decidendi of Chirwa v Transnet Ltd was that the termination did not constitute 'administrative action' and the claim was therefore bad in law, not that the High Court lacked jurisdiction. The jurisdictional statements in Chirwa were obiter and not binding. (2) The Court expressed the view that 'the least said about jurisdiction in such cases the better' because once the jurisdictional red herring is removed, courts can focus on the substantive issue of whether employees have rights arising outside the LRA. (3) The Court emphasized the importance of the doctrine of precedent to the rule of law and constitutional order, but noted that only the ratio decidendi binds lower courts, not obiter dicta. (4) The Court noted the potential for courts to recognize new rights through hearing claims that assert novel rights, even if those claims are ultimately dismissed as bad in law (citing Lillicrap, Wassenaar and Partners v Pilkington Brothers). (5) The Court expressed doubt (without deciding) whether a finding by a CCMA arbitrator can prevent a litigant from raising the same issue in the High Court. (6) The Court commented on the use of the word 'characterizing' claims, warning against its abuse to convert claims into something other than what the claimant asserts. (7) The Court provided an extended discussion of general principles of jurisdiction, the distinction between exclusive and concurrent jurisdiction, and pleading practices regarding jurisdictional challenges.

This case is of fundamental importance in South African employment law and civil procedure. It clarifies the relationship between Labour Relations Act remedies and common law contractual remedies available to employees. The judgment establishes that: (1) High Courts retain jurisdiction to enforce employment contracts notwithstanding the existence of the LRA framework (as preserved by section 77(3) of the Basic Conditions of Employment Act); (2) An employee may have multiple distinct rights arising from termination of employment (LRA rights, contractual rights, constitutional rights) and may pursue these separately; (3) Pursuing one remedy does not preclude pursuing another distinct remedy; (4) Jurisdiction is a question of the court's power to adjudicate, which cannot depend on the merits of the claim; (5) Courts cannot deny access to forums designated by law on grounds of 'judicial policy' without violating constitutional rights (section 34). The case provides important clarification of the doctrine of precedent, ratio decidendi and obiter dicta, particularly in relation to the Constitutional Court's decision in Chirwa v Transnet Ltd. It reaffirms fundamental principles about access to justice and the rule of law. The judgment contains an extensive analysis of jurisdictional principles that has broader application beyond employment law.