An interesting matter which we’ve recently had to deal with is whether an executor/executrix of a deceased person will be able to proceed with a dispute in the Commission for Conciliation, Mediation and Arbitration (CCMA) on behalf of the deceased for the benefit of his/her estate?
In the matter of Estate Late Mavuna & Another v National Sorghum Breweries Ltd (1996) 17 ILJ 785 (IC), the Court held that:
‘The stage of litigation, against which the right to transit a claim from a deceased to his estate, is measured, is known in our law as “litis contestation”. It is a stage where the “lis” (the claim) has been clearly defined, and the contentions of both sides (the pleadings) have been filed. Only certain types of claims, and, indeed, only claims which had been raised, presented (on paper) to the other party had delivered its reply, i.e. “close of pleadings”, prior to death are transmissible.’
In the matter of Mkhungo & Others and Cecil Renaud Educare Centre (2004), 25 ILJ 156 (CCMA), the Court held that in proceedings before the CCMA, the referral of a dispute prior to the death of an employee means that the stage of litis contestation has been reached.
The Court could not see any difficulty in extending the principle of allowing an executor to recover wages to any other benefit that would have accrued to the employee at the time of his death in the matter of Estate Late W G Jansen van Rensburg v Pedrino (Pty) Ltd (2000) 21 ILJ 494 (LAC).
Although the aforesaid matter was heard under the auspices of the Labour Relations Act 1956, the Court in the matter of Mkhungo & others and Cecil Renaud Educare Centre held that it could see no reason why the same should not apply under the present Act, i.e. the Labour Relations Act 66 of 1995, as amended and was therefore of the view that an executor of a deceased employee who referred a dispute to the CCMA before he/she passed away has the right to claim in terms of the LRA.
Subsequently, in the matter of Basil Read (Pty) Ltd v National Union of Mine Workers and Another; In Re: National Union of Mine Workers and Another v Commission for Conciliation, Mediation and arbitration and Others it referred with approval to the matter of Estate Late W G Jansen van Rensburg v Pedrino (Pty) Ltd and reiterated that an executor would need to be appointed in order to pursue the interest of the deceased employee’s estate under the LRA.
Based on the above, it is clear that the Courts have accepted that for the benefit of the deceased employee’s estate, a dispute may continue, should the referral of a dispute been made to the CCMA prior to the death of an employee and an executor/executrix is appointed to pursue the interest of the deceased employee’s estate.
References:
Estate Late Mavuna & Another v National Sorghum Breweries Ltd (1996) 17 ILJ 785 (IC);
Mkhungo & Others and Cecil Renaud Educare Centre (2004) 25 ILJ 156 (CCMA);
Estate Late W G Jansen van Rensburg v Pedrino (Pty) Ltd (2000) 21 ILJ 494 (LAC);
Basil Read (Pty) Ltd v National Union of Mine Workers and Another; In Re: National Union Workers Union of Mine Workers and Others (JR 1591/2009) [2013] ZALCJHB 352; (2014) 35 ILJ 2153 (LC)(4 December 2013);
Legal Opinion of Adv. VE Kruger.
About The Author:
Diandra Cowie is a Labour and BEE Legal Advisor at SEESA Nelspruit. She obtained her B. Com Law degree at UNISA and is currently studying towards her LLB degree.