Jurisdiction of the CCMA to adjudicate disputes between DIRCO and locally recruited personnel employed at South African diplomatic and consular missions abroad

October 1st, 2020

At South Africa’s (SA) more than 120 diplomatic and consular missions (missions) abroad, the Department of International Relations and Cooperation (DIRCO) employs both career diplomats and locally recruited personnel (ie, employees appointed in the country where the mission is situated). The duties and responsibilities of these two categories of employees differ substantially: Diplomats mainly represent SA and interact with the receiving state while locally recruited personnel are usually employed in a supporting capacity (ie, as secretaries, translators, drivers, or domestic helpers).

It is DIRCO’s established policy to employ locally recruited personnel at missions in terms of local law, being the proper law of the employment contract that exists between the mission and its locally recruited personnel component. As I have noted in a previous article ‘Diplomatic Law: Service of process on foreign defendants’ 2017 (Dec) DR 34, mission premises are not extraterritorial (ie, an extension of SA) but instead inviolable. (Inviolability in modern international law is a status accorded to premises, persons or property physically present in the territory of the receiving state, albeit not subject to its jurisdiction in an ordinary way. The receiving state is under a duty to abstain from exercising any enforcement rights in respect of inviolable premises, persons or property and under a positive duty to protect inviolable premises, persons or property from physical invasion or interference with their functioning and from impairment of their dignity.) Accordingly, South African law will ordinarily not be regarded as the proper law of such contracts.

Like in any labour environment, disputes regarding alleged unfair employment practices will invariably arise between missions and locally recruited personnel – this could include unfair dismissal disputes. Such a dispute arose at the South African Permanent Mission to the United Nations on 13 August 2018 when a locally recruited consular clerk and South African national, Zinhle Nkosi (Nkosi), had been dismissed by the head of the mission, Ambassador Nosipho Mxakato-Diseko (Mxakato-Diseko), without the necessary approval of DIRCO. After Nkosi had lodged an unfair dismissal dispute against DIRCO with the Commission for Conciliation, Mediation and Arbitration (CCMA) in Pretoria, the Director-General (DG) of DIRCO decided to settle the dispute and instructed Mxakato-Diseko to reinstate Nkosi at the mission. Not agreeing with the DG’s decision, Mxakato-Diseko approached the Labour Court (LC) on an urgent basis for interim interdictory relief to prevent its implementation. In the judgment of Mxakato-Diseko v Director General: Department of International Relations and Cooperation and Another [2020] 2 BLLR 217 (LC), the LC, however, dismissed the application due to a lack of urgency.

It appears from paras 4.4 and 4.5 of the judgment that DIRCO initially objected to the CCMA having jurisdiction, arguing that Nkosi had been employed at the mission in Geneva, and was thus subject to Swiss law and should have made use of the dispute resolution mechanisms prescribed by Swiss law. As Nkosi’s dispute was settled, the CCMA never had an opportunity to address these points in limine. The purpose of this article is thus to investigate whether or not locally recruited personnel could lodge disputes with the CCMA in terms of the Labour Relations Act 66 of 1995 (LRA) in SA, despite the fact that they are employed abroad in terms of foreign law.

There is a presumption in our law which applies in the interpretation of statutes that laws do not apply extraterritorially unless they specifically provide to the contrary (see Bishop and Others v Conrath and Another 1947 (2) SA 800 (T) at 803; S v Makhutla en ’n Ander 1968 (2) SA 768 (O)). In Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC) the Labour Appeal Court (LAC), however, ruled that the territorial application of the LRA to the dispute in question had to be determined according to the locality of the undertaking carried out by the employer (see paras 15 to 18).

The LAC also considered this issue in Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC). In that case, Tebogo Brian Monare, employed as Finance and Administration Manager of SA Tourism’s London office, was dismissed from service due to misconduct. Monare then instituted unfair dismissal proceedings against SA Tourism at the CCMA. The LAC indicated that the court in the Astral case had emphasised that the undertaking where the employee was employed, and which is situated beyond the territorial jurisdiction of the relevant forum where the employer’s undertaking is located, must be separate and divorced from the employer’s undertaking (para 34). In other words, the relevant issue is not about where the appellant was employed but whether the London office was an undertaking of SA Tourism, which was separate and divorced from its undertaking in SA (para 36). The LAC concluded that SA Tourism’s London office was not divorced or separate from its SA office; in fact, it was linked to, related to and dependent on it – its location in London did not make it a different undertaking to the SA office as both branches had the same purpose, which was to promote tourism in SA. The LAC also mentioned that SA Tourism’s was a creature of statute – the Tourism Act 72 of 1993 – which made the LRA applicable (see paras 37 to 42).

The LAC in Monare held as well (at para 24) that, if a claimant formulates his claim correctly to ensure that it will be enforceable in the CCMA, then the claimant is entitled to bring it in that forum. Jurisdiction will be assessed on the pleadings properly construed and not on the substantive merits of the case – whether the claim is bad is thus a separate issue. These principles, the court held, also apply to the CCMA and the documents that served to introduce the claim (see para 25).

If the LAC’s above-mentioned reasoning is applied to Nkosi’s unfair dismissal dispute, it is evident that the mission in Geneva is not separate and divorced from DIRCO as the mission is clearly linked to, related to and dependent on DIRCO’s head office in Pretoria. This point is strengthened by the fact that the new Foreign Service Act 26 of 2019, which has not yet come into operation, provides expressly in s 10 thereof for the employment of locally recruited personnel at missions.

It follows that, if a locally recruited personnel member formulates their dispute correctly, the CCMA will most likely have jurisdiction to conciliate and to arbitrate the dispute. Despite having been employed abroad in terms of local law, all aggrieved locally recruited personnel will accordingly be able to lodge disputes against DIRCO at the CCMA in terms of the LRA.

Riaan de Jager BLC LLB LLM (UP) Advanced Diploma (Labour Law) (UJ) is a former Principal State Law Adviser (International Law), attached to the Office of the Chief State Law Adviser (IL) of DIRCO, and currently a consultant at Malan & Hitge Attorneys in Pretoria.

This article was first published in De Rebus in 2020 (Oct) DR 6.

De Rebus