Bennett v Curro Holdings Limited (2024-141557) [2025] ZAWCHC 285 (31 October 2025)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Not Reportable

Case No: 2024-141557

In the matter between:

BEVERLEY B P BENNETT Applicant

and

CURRO HOLDINGS LIMITED Respondent

Coram: DA SILVA SALIE, J

Heard on: 30 October 2025

Delivered on: 31 October 2025

Summary:

Employment – Jurisdiction – Section 157(1) of the Labour Relations Act 66 of 1995 – Section 8 of Arbitration Act 42 of 1965 – Arbitrator’s award stayed to allow applicant to seek extension of contractual time-bar – Arbitrator’s direction contextualised applicant’s approach to High Court – High Court lacked jurisdiction; dispute arose from employment relationship regulated by LRA – Matter transferred to the Labour Court in terms of Section 27(1)(b) of the Superior Courts Act 10 of 2013 – Each party to bear own costs.

ORDER

(i) It is declared that this Court lacks jurisdiction to determine the application, the dispute falling within the exclusive jurisdiction of the Labour Court in terms of section 157(1) of the Labour Relations Act 66 of 1995.

(ii) In terms of section 27(1)(b) of the Superior Courts Act 10 of 2013, the application is transferred to the Labour Court, Cape Town, for determination. The Chief Registrar of this Court is directed to transmit a copy of this order and the record within five (5) days from the date hereof to the Registrar of the Labour Court.

(iii) Each party to bear own costs herein.

JUDGMENT

DA SILVA SALIE, J:

Introduction

[1] This is an application brought in terms of section 8 of the Arbitration Act 42 of 1965 for an extension of the contractual time-bar contained in the parties’ employment agreement.

[2] The disputes arise from the termination of the applicant’s employment and from alleged failures relating to her remuneration, bonuses, and share allocations during the 2021–2022 period.

[3] The respondent opposes the application, contending that this Court lacks jurisdiction in light of section 157 of the Labour Relations Act 66 of 1995 (“the LRA”) and, in any event, that the applicant has failed to establish undue hardship as contemplated in section 8 of the Arbitration Act.

Background

[4] The applicant instituted three separate disputes with the CCMA. The first, concerning the allocation of shares, was referred on 5 September 2023, prior to her dismissal. Following her dismissal on 20 September 2023, she referred two further disputes, one alleging unfair dismissal, and the other relating to outstanding remuneration and benefits. In each instance, the respondent objected to the CCMA’s jurisdiction on the basis of the private arbitration clause contained in the employment contract, and the CCMA upheld the objection on all three occasions.

[5] On 18 April 2024 the applicant referred the disputes to the Arbitration Foundation of Southern Africa (AFSA). The respondent again objected, this time on the ground that the referral was made outside the 30-day period prescribed by the contract. The arbitrator, Adv Sven Olivier SC, delivered an award on 23 October 2024. At paragraph 69 thereof he stayed the making of any award on the respondent’s special plea and expressly afforded the applicant an opportunity “to bring an application in terms of section 8 of the Arbitration Act 42 of 1965 at the High Court and/or a court of concurrent jurisdiction.”

Issues

[6] Two issues arise for determination:

(a) whether this Court has jurisdiction to entertain the application; and

(b) whether, on the facts, the applicant has demonstrated undue hardship warranting the extension sought.

[7] Should the respondent be successful on the jurisdiction point, I am to consider whether, in the interests of justice, this Court ought to transfer the matter to the Labour Court in terms of section 27(1)(b) of the Superior Courts Act 10 of 2013 rather than dismiss it outright and which will require the process to commence de novo before the Labour Court.

Jurisdiction

[8] Section 157(1) of the Labour Relations Act 66 of 1995 confers exclusive jurisdiction on the Labour Court in respect of matters which that Act requires that court to determine. This principle has been affirmed in Chirwa v Transnet Ltd and Others [2007] ZACC 23 and Fredericks and Others v MEC for Education and Training, Eastern Cape 2002 (2) SA 693 (CC), where it was emphasised that disputes arising from the employment relationship and implicating the rights and remedies created by the LRA must be pursued in the Labour Court. In Baloyi v Public Protector and Others [2020] ZACC 27 the Constitutional Court reaffirmed that principle, noting that the High Court’s jurisdiction is ousted where the underlying cause of action is regulated by the LRA.

[9] By contrast, as recognised in Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA), the High Court may retain jurisdiction in respect of purely contractual claims that fall outside the LRA’s scope. The substance of the dispute and the cause of action, as defined by the applicant in her founding papers, arise directly from her employment relationship with the respondent and concern alleged unfair conduct and termination of employment. Although framed as an application under the Arbitration Act 42 of 1965 to extend a contractual time-limit, the relief sought in substance engages rights and remedies regulated by the Labour Relations Act 66 of 1995. On that characterisation, the dispute falls within the exclusive jurisdiction of the Labour Court.

[10] It follows that this Court lacks the competence to determine the application however she is not denied access to seek the relief in question. During argument, counsel for the respondent expressly accepted that the applicant is not without recourse and may pursue condonation before the Labour Court and submitted that it is not in dispute that the applicant is still able to knock on the door of the Court for relief, however, that she is to do so at the door of the correct Court. That submission is correctly made. The Labour Court is the forum specifically created by the Legislature to adjudicate employment-related disputes of this nature, and to determine ancillary procedural issues such as condonation and time-bar extensions. It is the appropriate and specialised forum to pronounce on the merits and procedural aspects of the dispute.

[11] Having regard to Section 27(1)(b) of the Superior Courts Act 10 of 2013, this Court is empowered, where the interests of justice so require, to transfer a matter to a Court having competent jurisdiction rather than to strike it from the roll or dismiss it. In my view such an approach ensures continuity of the proceedings and avoids unnecessary duplication of process and costs. In the exercise of that discretion, this is an appropriate instance to transfer the matter to the Labour Court, Cape Town, in terms of section 27(1)(b) of the Superior Courts Act 10 of 2013, for further determination in accordance with that Court’s statutory powers.

[12] In light of my finding that this Court lacks jurisdiction to entertain the matter, it would be neither competent nor appropriate to express any view on the merits of the application and to deal with the factual and procedural aspects relating thereto in detail. Those questions fall to be determined by the Labour Court once the matter is enrolled before it. To do otherwise would risk trenching upon that Court’s exclusive domain and pre-empting its discretion in relation to condonation and related procedural relief.

Costs

[13] On costs, this Court is mindful that both parties approached the matter in good faith and that the issues raised were not devoid of merit. The arbitrator, Adv Olivier, had expressly stayed the arbitration proceedings pending an application to this, the High Court, or another Court of concurrent jurisdiction. The applicant’s resort to this Court was therefore bona fide and prompted by procedural uncertainty rather than a disregard of the proper forum. I do not agree with the respondent’s submission that given the applicant’s history of approaching the incorrect forum, that being the CCMA as opposed to AFSA for private arbitration, that this should be considered in deciding a costs order herein against the applicant. That sequence of events is relevant in the condonation application before the Labour Court and ought not to play a role in the determination of costs herein.

[14] Lastly, I need add that whilst I agree with the submission that the arbitrator’s ruling could not, in law, confer jurisdiction upon this Court or authorise the applicant to approach it as of right, it contextualises her conduct and demonstrates that her approach to this Court was bona fide and taken in direct response to the directive contained in that ruling. I am satisfied that a costs order would be inappropriate, as neither party acted unreasonably or in bad faith. Each party shall accordingly bear its own costs in respect of the proceedings before this Court.

Order

(i) It is declared that this Court lacks jurisdiction to determine the application, the dispute falling within the exclusive jurisdiction of the Labour Court in terms of section 157(1) of the Labour Relations Act 66 of 1995.

(ii) In terms of section 27(1)(b) of the Superior Courts Act 10 of 2013, the application is transferred to the Labour Court, Cape Town, for determination. The Chief Registrar of this Court is directed to transmit a copy of this order and the record within five (5) days from the date hereof to the Registrar of the Labour Court.

(iii) Each party to bear own costs herein.

_____________________________

G. DA SILVA SALIE

JUDGE OF THE HIGH COURT

WESTERN CAPE

Appearances

For Applicant: Adv. E de Waal

Instructed by: Werksmans Attorneys (Sandton)

c/o Werksmans Attorneys (Cape Town)

For Respondent: Adv. F Boda SC

Adv I de Vos (First Junior)

Adv. S Abdool Karim (Second Junior)

Instructed by: Cliffe Dekker Hofmeyr Inc. (Sandton)