Mpumelelo Obed Mbatha v University of Zululand

Mpumelelo Obed Mbatha was employed by the University of Zululand (Unizul) as a researcher in the Zulu Dictionary Project from 1 September 1984. In September 2002, a tripartite agreement was concluded between Unizul, the Pan South African Language Board (PanSALB), and Isikhungo Sesichazamazwi SesiZulu (ISS), a section 21 company established to promote isiZulu. Under the agreement, Unizul seconded Mbatha and two other staff members to ISS, where Mbatha served as Chief Executive Officer. Clause 2.4 of the agreement required ISS to take over the three staffing positions and employees by 31 December 2005, or earlier if possible. In June 2005, PanSALB suspended funding to ISS due to missing audited financial statements. Unizul continued paying salaries from its own funds until June 2008, when it stopped paying Mbatha's salary, claiming he had become an employee of ISS after 31 December 2005. Mbatha instituted proceedings in the Labour Court claiming Unizul was still his employer and had unlawfully withheld his salary.

• Whether the Constitutional Court has jurisdiction to hear an appeal in a labour law dispute involving employment status
• Whether Mbatha remained an employee of Unizul or became an employee of ISS after 31 December 2005
• Whether the matter raises a constitutional issue sufficient to confer jurisdiction on the Constitutional Court
• Whether secondment of an employee affects the determination of who the employer is
• Whether there was a transfer of business as a going concern under section 197 of the Labour Relations Act
• Whether non-payment of salary constitutes a breach of the right to fair labour practices under section 23 of the Constitution and the Basic Conditions of Employment Act

Application for leave to appeal dismissed with costs (majority). The orders of the Labour Appeal Court and Labour Court dismissing Mbatha's claim were upheld.

Majority: A purely factual dispute about who an applicant's employer is does not raise a constitutional issue merely because it involves legislation that gives effect to a constitutional right. For jurisdiction to exist, there must be a genuine issue of constitutional interpretation or application, not simply a factual dispute about employment status. An employee's conduct can give rise to an inference of consent to a transfer of employment. The hallmarks of an employment relationship and the employee's conduct as CEO of an organization can establish who the employer is. Minority: Determining whether a person is an employee falls within the right to fair labour practices under section 23 of the Constitution. The proper interpretation and application of the Basic Conditions of Employment Act, which was enacted to give effect to section 23, raises a constitutional issue. When an employee has been seconded to another entity, control and supervision by that entity does not automatically make it the employer. For a takeover of employment to occur under an agreement like clause 2.4 of the tripartite agreement, there must be positive action such as appointment by the new employer, and the employee's consent is required.

Minority judgment (Zondo J): The Labour Appeal Court's finding that there was a transfer of business as a going concern under section 197 of the Labour Relations Act should be set aside as it was not part of Unizul's case and no such transfer occurred. The tripartite agreement was a partnership agreement, not a transfer of business. Section 197 transfers do not occur simply through an agreement to transfer at a future date without actual transfer of assets or workforce. The minority also observed that it would be odd for Unizul to continue paying salaries of another entity's employees for over two years when under no legal obligation to do so. The minority emphasized the importance of clarity regarding control and supervision in secondment situations given that secondment is an important feature affecting thousands of public servants. Cameron J (majority): This Court should be slow to hear appeals from the Labour Appeal Court unless they raise important issues of principle. Even under the expanded jurisdiction from the Constitution Seventeenth Amendment Act, this case presents no arguable point of law of general public importance.

This case is significant for South African jurisprudence on several grounds: (1) It clarifies the boundaries of the Constitutional Court's jurisdiction in labour disputes, particularly regarding when employment disputes raise constitutional issues; (2) It demonstrates divided views within the Court on whether application of legislation enacted to give effect to constitutional rights automatically raises a constitutional issue; (3) It addresses the legal nature of secondment in South African employment law and the significance of control and supervision in determining employer identity; (4) It illustrates the interplay between contractual employment relationships and statutory employment rights under the Basic Conditions of Employment Act; (5) It demonstrates differing approaches to determining jurisdiction based on factual disputes versus statutory interpretation; (6) The minority judgment provides important guidance on secondment in the public service and similar contexts.