Lewarne v Fochem International (Pty) Ltd

The appellant, Ms Cheryll Lewarne, was employed by Fochem International (Pty) Ltd for approximately eight years, first as a Financial Manager and later as a director, earning a gross monthly salary of R75 000 and entitled to an annual 13th cheque. In December 2016 she received only part of her 13th cheque. In January 2017 she was accused by her employer of various acts of misconduct and was suspended. The employer refused to pay the balance of the 13th cheque and subsequent monthly salaries, alleging that it had set off these amounts against an alleged indebtedness arising from unlawful personal expenditure on a company credit card. Ms Lewarne instituted motion proceedings in the Gauteng Division of the High Court seeking payment of outstanding remuneration. The respondent raised a point of law that the High Court lacked jurisdiction, contending that the dispute fell within the exclusive jurisdiction of the Labour Court under the Basic Conditions of Employment Act 75 of 1997 (BCEA). The High Court upheld the jurisdictional objection and dismissed the application, leading to the appeal.

The appeal was upheld with costs. The High Court order was set aside and replaced with an order dismissing the respondent’s jurisdictional point and directing the respondent to pay the appellant R325 000 (less UIF and PAYE deductions), interest at 10.25% per annum a tempore morae, and the costs of the application.

The case clarifies the scope of the High Court’s jurisdiction in employment-related disputes and reaffirms that civil courts retain concurrent jurisdiction under section 77(3) of the BCEA for contractual employment claims. It underscores that not every dispute touching on the BCEA falls within the exclusive jurisdiction of the Labour Court and reinforces the correct application of precedent, particularly the majority decision in Fedlife Assurance Ltd v Wolfaardt.