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[2014] ZASCA 3
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President of South Africa and Others v Reinecke (210/13) [2014] ZASCA 3; 2014 (3) SA 205 (SCA); [2014] 5 BLLR 419 (SCA); [2014] 2 All SA 376 (SCA); (2014) 35 ILJ 1485 (SCA) (28 February 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 210/13
DATE:
28 FEBRUARY 2014
REPORTABLE
In the
matter between:
THE
PRESIDENT OF SOUTH AFRICA
.....................................
First
Appellant
MINISTER
OF
JUSTICE
.........................................................
Second
Appellant
THE
MAGISTRATES COMMISSION
.....................................
Third
Appellant
And
MACHIEL
FREDERICK
REINECKE
...........................................
Respondent
Neutral citation:
The
President of RSA v Reinecke
(210/13)[2014]
ZASCA 3 (28 February 2014)
Coram:
Mpati P, Wallis, Petse and Saldulker JJA and Van
Zyl AJA.
Heard:
17 February 2014
Delivered:
28 February 2014
Summary:
Magistrate – appointed as relief
magistrate – removed from work as relief magistrate and
generally from performing judicial
functions – claim for
damages based on repudiation of contract of employment –
whether magistrate an employee –
whether magistrate can claim
constructive dismissal.
ORDER
On
appeal from
North Gauteng High Court,
Pretoria (Pretorius J sitting as court of first instance):
The
appeal is upheld and the order of the court below is set aside and
replaced by an order dismissing the plaintiff’s claim.
In both
courts there will be no order for costs.
JUDGMENT
Wallis
JA
(
Mpati
P, Petse and Saldulker JJA and Van Zyl AJA
concurring)
[1]
In 1996 Mr Reinecke was appointed as a
magistrate for the district of Germiston. Although Germiston was his
headquarters his duties
were those of a relief magistrate and he was
sent to courts elsewhere in South Africa, both within and without
Gauteng, to relieve
magistrates who were indisposed, or absent, or to
assist in clearing a backlog of cases. Sometimes he acted in regional
courts
and sometimes as head of a particular court. He lived in
Pretoria. In September 2000, for personal and business reasons, his
wife
and children moved to a plot some 40 kilometres outside
Rustenberg, and it was his intention to join them. As he was based in
Germiston
and spent most of his time in Gauteng and on the East Rand,
he was initially unable to do so. Instead he went to live in
Boksburg,
whilst the bulk of the family’s household effects
were placed in storage.
[2]
In October 2000 the
Magistrates Commission advertised a number of posts for magistrates
throughout the country including one at
Randburg described as
‘magistrate (relief)’.
[1]
Mr Reinecke applied for this post as, at that time, the Randburg
court provided relief magistrates for the North West province
and he
expected to be undertaking relief duties nearer the new family home
outside Rustenburg. He made it clear in his interview
for the
position that he did not want the post if it meant that he would be
performing relief duties primarily in Gauteng. He was
appointed as a
magistrate in Randburg on 10 May 2001. However, his appointment
was not a happy one and on 2 January 2002
he resigned, giving
one month’s notice.
[3]
Mr Reinecke contended that his resignation
was brought about by victimisation and discrimination against him by
the chief magistrate
at Randburg, a Mr Booi. He said that this
rendered his working circumstances intolerable and lead to his
resignation. He
claimed that this was a constructive dismissal
amounting to a repudiation of his employment contract, which he
accepted, as well
as an unfair labour practice. On that footing he
sued the first appellant, the President of South Africa (the
President), and the
second appellant, the Minister of Justice and
Constitutional Development (the Minister), for damages based on the
difference between
the earnings he would have enjoyed as a magistrate
until his retirement at the age of 65 and his actual earnings from
employment
during that period. At the trial he calculated that this
would amount to R9 460 270. His claim succeeded before
Pretorius
J, who awarded damages in that sum, together with interest
and costs. The appeal is with her leave.
[4]
At the outset it is necessary to identify
the legal basis for Mr Reinecke’s claim as pleaded in the
particulars of claim.
He alleged that his appointment as a magistrate
at Germiston gave rise to an ‘agreement of employment’
subject to conditions
of service determined in the regulations
promulgated under s 16 of the Magistrates Act 90 of 1993 (the
Magistrates Act). He
said that Mr Booi’s conduct constituted a
repudiation of the agreement between himself and ‘the
Defendant’, without
specifying which of the two defendants he
was referring to, which repudiation he had elected to accept by way
of his resignation.
In addition to the damages claimed for loss of
earnings there was a further claim for
injuria
,
but that was not upheld at the trial and, there being no
cross-appeal, nothing more need be said about it.
[5]
Mr Reinecke’s pleaded claim was
therefore one for damages founded on the repudiation of a contract of
employment, accepted
by him and giving rise to financial loss in the
form of loss of income. Counsel confirmed that this was the sole
basis for the
claim. This formulation of the claim raised the
question whether Mr Reinecke was an employee of either the President
or the Minister.
They pleaded that he was a judicial officer, as
contemplated in the Constitution, occupying a constitutional and
statutory office.
They denied that he was an employee of either of
them, or that a contract of employment existed between him and either
of them
or the Department of Justice and Constitutional Development.
[6]
One would have expected this issue, so
clearly identified in the pleadings, to have been central to the
conduct of the trial and
the argument in both courts. Instead it
appears to have attracted very little attention at the trial and was
not dealt with in
the judgment. Nor was it addressed in the heads of
argument and counsel were largely unprepared to deal with it in oral
argument.
Responding to questions from the bench they admitted that
they had not anticipated that it would be necessary for them to do
so.
This leaves this court in the invidious position of having to
deal with an issue of considerable importance for magistrates with
very little assistance. That is to be deplored. Nonetheless it cannot
be avoided.
[7]
At the outset it is
appropriate to record that this judgment deals with the position of
magistrates in the period between 1996,
when Mr Reinecke was first
appointed, and 2002. More particularly it is concerned with the
position during 2001 and 2002, which
was when the critical events
occurred. Nothing in the judgment affects the constitutional position
of magistrates as part of the
judiciary and the judicial authority of
this country in terms of Chapter 8 of the Constitution. The narrow
question is simply whether
at that time magistrates were employees of
the State in terms of contracts of employment. (It is not suggested
that Mr Reinecke’s
situation was any different from that of any
other magistrate.) A finding that they were so employed does not
impact upon their
independence, which is constitutionally
guaranteed.
[2]
There are many examples of independent judiciaries in other parts of
the world, such as Scandinavia, Germany and France, where
the judges
are employees of the State but nonetheless independent. The European
Court of Justice
[3]
and the Supreme Court in England have recently affirmed that the
requirement of judicial independence does not mean that part-time
recorders in England and Wales cannot be workers in terms of
directives of the European Union dealing with employment matters,
which apply to those who are employed under a contract of
employment.
[4]
[8]
Historically in South
Africa magistrates were employees of the State and part of the public
service. Without needing to venture
any further into historical
matters s 1(2) of the Public Service and Pensions Act 29 of 1912
provided expressly that magistrates
formed part of the public
service. By contrast, s 1(6) of the same statute specifically
excluded judges from the public service.
That remained the position
under successive iterations of the Public Service Act up to and
including the Public Service Act 111
of 1984.
[5]
Since 1944 the Minister of Justice has appointed magistrates in terms
of the provisions of s 9(1)
(a)
of the
Magistrates’
Courts Act 32 of 1944
.
[6]
This power of appointment of magistrates, is now qualified by the
provisions of the
Magistrates Act, and
has been held to be
constitutionally valid.
[7]
[9]
The
Hoexter Commission of Enquiry
[8]
recommended that magistrates be removed from the ambit of the public
service and that their appointment, discipline and discharge
be dealt
with by advisory bodies consisting of judicial officers.
[9]
This led to the enactment of the
Magistrates Act in
1993. That marked
a significant development in regard to the position of magistrates.
It established the Magistrates Commission
(the Commission) as an
independent body,
[10]
charged under
s 4
(a)
with ensuring that
the appointment, promotion, transfer and discharge of magistrates
takes place without favour or prejudice. The
Minister’s power
to appoint magistrates was qualified by
s 10
, which provided
that he should only do so ‘after consultation’ with the
Commission. Whilst that imposed no obligation
on the Minister to make
appointments in accordance with the recommendations of the
Commission, as might have been the case had
the provision been that
appointments be made ‘in consultation’ with the
Commission, it nonetheless required the Minister
to be receptive to
the views of the Commission.
[11]
[10]
The
Magistrates Act
imposed
further important limitations on the powers of the executive
in relation to magistrates. Their salaries were no longer
determined
solely by the Minister and the Public Service Commission,
but by the Minister in consultation with the Commission and after
consultation
with the Commission for Administration and with the
concurrence of the Minister of Public Expenditure
(s 12(1)
(a)
).
Three years later the need to consult the Public Service Commission
was removed.
[12]
The conditions of service of magistrates were to be determined by the
Minister by way of regulations (ss 11 and 16(1)) after receiving
a
recommendation from the Commission. Initially the role of the
Commission in regard to the suspension and discharge of magistrates
was limited to carrying out investigations regarding misconduct,
continued ill-health or incapacity of magistrates with a view
to the
Minister taking a decision to suspend the magistrate and report to
Parliament on whether the magistrate should be removed
from office
(s 4(1)
(f)
read
with
s 13(3)
(a)
of the
Magistrates
Act as
originally enacted).
[13]
This was amended in 1996
[14]
to provide that the Commission could provisionally suspend a
magistrate pending an investigation into the magistrate’s
fitness
to hold office
(s 13(3)
(a)
).
The Minister could confirm that suspension if the Commission
thereafter recommended that the magistrate be removed from office
and
if the Minister did so the Commission’s recommendation would
then be referred to Parliament for a decision whether to
remove the
magistrate from office
(ss 13(3)
(aA),
(c), (d)
and
13
(4)).
[11]
The
Magistrates Act served
an
important purpose in that:
‘
What
is clear from a study of the Act is that Parliament was concerned to
grant to magistrates an independence and freedom from
interference
which they had not previously enjoyed and to that extent at least to
bring their position and conditions of tenure
and service closer to
that of Judges.’
[15]
In
making provision for the establishment of the Commission, Parliament
foreshadowed the provisions of s 109 of the Interim Constitution,
[16]
which read:
‘
There
shall be a Magistrates Commission established by law to ensure that
the appointment, promotion, transfer or dismissal of,
or disciplinary
steps against magistrates, take place without favour or prejudice,
and that the applicable laws and administrative
directives in this
regard are applied uniformly and properly, and to ensure that no
victimisation or improper influencing of magistrates
occurs.’
This
requirement was linked to s 96(3) of the Interim Constitution,
which provided that no person and no organ of state shall
interfere
with judicial officers in the performance of their functions, thereby
reinforcing the long established legal position
of magistrates namely
that, notwithstanding their position within the public service, in
the performance of their judicial functions
they were entirely
independent and free of influence from the administration.
[17]
The Interim Constitution thereby strengthened the position of all
courts, including the magistrates’ courts, by providing
them
with institutional protection that they had previously lacked.
[18]
[12]
The
Magistrates Act did
not, however, put an end to the status of magistrates as employees
within the general public service, although by making special
arrangements in relation to them, it removed them from most of the
provisions applicable to other public service employees in terms
of
the Public Service Act.
[19]
Had it terminated their status as employees that would have involved
a radical alteration to the basis upon which they had been
appointed
as magistrates. It would have converted them from employees of the
State to office bearers having no contractual link
to the State and
dependent solely on public law remedies to enforce the rights vested
in them by the
Magistrates Act and
the regulations made thereunder.
If that was the purpose of the legislation one would have expected
there to be clear language
to that effect, as it would involve the
removal of existing rights and their substitution by uncertain other
rights. There is no
such clear language in the
Magistrates Act. On
the contrary
s 18(3)
, which is part of the transitional and
savings provisions, provides that the conditions of service
applicable to magistrates prior
to the date of commencement of
s 12
of the
Magistrates Act
[20
]
‘shall not be affected to his or her detriment’. This
provision was protective of the established legal rights of
magistrates appointed prior to that date.
[21]
[13]
As
the following summary shows, the terms of the
Magistrates Act also
indicate that the relationship of magistrates, once appointed, and
the State, as represented by the Department of Justice and
Constitutional Development, continued to be one of employment under a
contract of employment. I start with the objects for which
the
Commission was established. They were to ensure that the appointment,
promotion, transfer and discharge or discipline of magistrates
take
place without favour or prejudice. Although the word ‘appointment’
is more appropriate to an office than an employment
relationship,
under
regulation 3(1)
(f)
the appointment is initially probationary, which is characteristic of
employment.
[22]
Promotion, transfer and discharge are typical of an employment
relationship. Office bearers are not ordinarily subject to promotion
or transfer. Salaries, rank and grade of magistrates were to be
determined by the Minister in consultation with the Commission.
Again
questions of rank and grade are typical of employment especially in
the public service at any level of government. The manner
in which
magistrates could be removed from office was set out in
s 13
,
and in
s 16
the Minister was empowered on the recommendation of
the Commission to issue regulations dealing with virtually every
aspect of
the life and work of a magistrate. This included not only
terms and conditions of service but also the duties, powers, conduct,
discipline, hours of attendance, leave and pension entitlements of
magistrates.
[23]
The matters that can be dealt with by regulation cover every aspect
of a conventional employment relationship.
[14]
Although the
Magistrates Act undoubtedly
aimed at removing magistrates from the
public service and to some extent certainly has achieved that, it is
not clear that the
severance has been complete. Under
s 16(1)
(c)
the regulations may
determine the ‘creation of posts on the fixed establishment’
and the ‘number, grading, regrading,
designation, redesignation
or conversion of posts on the fixed establishment of any magistrate’s
office’. This is now
dealt with under
regulation 54
of the
regulations.
[24]
The significance of this is that under s 1(1)(viii) of the
Public Service Act 1984 the ‘fixed establishment’ meant
the posts created for the normal and regular requirements of a
department. Under ss 7(1)
(a)
and
(c)
the public service consisted
inter
alia
of the posts
on the fixed establishment. When that Act was repealed by the Public
Service Act, 1994,
[25]
the composition of the public service was defined in s 8(1
(a)
as including
persons who ‘are employed … in posts on the
establishment of departments’. Reference to the annual
report
of the Department of Justice and Constitutional Development for 2002,
the year of Mr Reinecke’s resignation, shows
that there were
1761 posts of magistrate on the department’s fixed
establishment.
[26]
That does not suggest that magistrates have been removed entirely
from the public service, much less that they have ceased to be
employed by the State.
[15]
What is more, when one
reads the regulations actually promulgated in 1993 under the
Magistrates Act one
finds that there have been few dramatic changes
to the actual working circumstances of magistrates. The
Magistrates
Act and
regulations are substantially similar to the provisions of
the Public Service Act 1984 and the public service code under the
latter.
A few illustrations will suffice. Section 4(1)
(a),
which sets out the
primary purpose of the Commission and the language of which is echoed
in s 109 of the Interim Constitution, reflects
the provisions of
s 10(1)
(a)
of
the Public Service Act 1984. Section 12(6), which provides that
the salary of a magistrate shall not be reduced except by
Act of
Parliament, was taken over from s 28 of the 1984 Act and had
counterparts in all earlier statutes governing the public
service.
[27]
In some respects the regulations incorporate provisions of the public
service regulations or the public service code, for example
in
respect of leave under regulation 38; leave gratuities under
regulation 39; the use of official quarters under regulation 40(2)
and certain provisions in regard to transport between the
magistrate’s home and place of duty under regulation 44.
Magistrates
are also members of the same pension fund and medical
scheme as members of the public service. All these are
indicia
that, notwithstanding their whole or partial detachment from the
public service, magistrates have not ceased to be employees of
the
State. There is accordingly substance to Mr Reinecke’s
contention that from the time he became a magistrate he was an
employee of the State.
[16]
However, it is
unnecessary to make a final decision in this regard, and perhaps
unwise to do so in the light of the absence of full
and proper
argument, because that conclusion would not on its own serve to
resolve the dispute in favour of Mr Reinecke. The reason
is that any
contract only arose after his appointment as a magistrate and was
overlain with elements that derived not from contract
but from the
Magistrates Act and
the regulations made thereunder. In advancing his
claim Mr Reinecke sought to rely solely upon contractual elements of
the relationship
and to disregard the statutory elements governing
his appointment and the basis upon which he could be discharged from
his post.
In my view that is impermissible. It is true that in
Mustapha v Receiver of Revenue,
Lichtenburg
[28]
this court held that
relationships entered into under statutory powers or with statutory
bodies could nonetheless, when disputes
arose, be dealt with as being
purely contractual in nature. However, that view was subject to a
powerful dissent by Schreiner JA
against the artificiality of the
line being drawn between the exercise of statutory powers and the
resultant contract,
[29]
and has subsequently been overruled.
[30]
The correct view is that one cannot divorce a contract arising from
the performance of statutory functions and the exercise of
statutory
powers from its statutory background. Sometimes the contractual
aspects will be crucial
[31]
and sometimes the statutory. Which are the more important will depend
upon the facts giving rise to the dispute. When there is
a breach of
the basis upon which the magistrate’s employment (in the broad
sense) is regulated, if the magistrate is an employee
of the State it
will often be difficult to determine whether the remedies for that
breach are to be found in contract or in public
law.
[17]
Mr Reinecke relied upon the fact that
he applied for a post advertised as that of a relief magistrate at
Randburg. He made it clear
when interviewed by the Commission that he
was only interested in being appointed to the position if it was a
relief position and
he would not be confined to performing relief
duties in Gauteng. Had he discovered after being appointed as a
magistrate in Randburg
that he had been appointed to one of the posts
advertised at the same time, but not involving relief duties or to
some other post
entirely, he would have been entitled to object. If
his objection had been ignored there can be no doubt that he could
have challenged
the recommendation by the Commission and the decision
of the Minister, under
s 9
of the
Magistrates’ Courts Act,
to
appoint him to a post he had not sought. Subject to any possible
obligation to follow the grievance procedures in the regulations,
that challenge would have been advanced by way of judicial review in
the high court. In other words he would have needed to resort
to
public law remedies, not contractual remedies, in order to resolve
the issue. That example illustrates the point that the appropriate
remedy for any grievance Mr Reinecke had, or any other magistrate
might have had, relating to their appointment as a magistrate
would
ordinarily have been a public law remedy such as a mandamus, or an
interdict or proceedings by way of judicial review, and
not a
contractual remedy.
[18]
An example of a situation where a
contractual remedy could possibly have been appropriate is furnished
by the first complaint that
Mr Reinecke levelled at Mr Booi.
Immediately upon his appointment as a magistrate in Randburg he
lodged a claim for payment of
a relocation allowance in terms of
regulations 23(1)
(g)
and
(h)
of
the regulations. Mr Booi took the view that the claim was unjustified
because Mr Reinecke’s wife and children had already
moved to
the new family home near Rustenburg before he even applied for the
post in Randburg. Whether Mr Booi was right or wrong
in that view is
immaterial. There was a legitimate dispute over Mr Reinecke’s
entitlement to be paid this amount, which came
to some R18 000.
The dispute was over a simple financial claim for payment of an
amount that was either due to him or not
in terms of any contract of
employment. There was no reason for him not to pursue it by way of a
claim in the appropriate magistrates’
court.
[19]
What then was the appropriate remedy for Mr
Reinecke’s grievances in the present instance? He made various
complaints about
Mr Booi’s conduct, but the straw that broke
the camel’s back came when Mr Booi summarily and without
consultation,
decided on 8 October 2001 that from that time on Mr
Reinecke would no longer undertake relief work and his functions
would be performed
only at the Randburg Magistrates’ Court.
Flowing from that Mr Booi advised the regional office of the
department to terminate
payments of Mr Reinecke’s standing
advance and to recover past payments from his salary. The final blow
was that when Mr
Reinecke reported for work at Randburg he was not
allocated any judicial work other than a few postponements and was
required to
undertake work of an administrative nature. In substance
the judicial side of his work was removed.
[20]
Such conduct on the
part of the employer in a conventional situation of employment is a
repudiation of the contract of employment.
[32]
It was argued on behalf of Mr Reinecke that it was equally the case
in regard to his employment as a magistrate. There are however
a
number of difficulties with this argument. In the same way as his
appointment had followed a statutory process with advertisement
and
interview leading to a recommendation by the Commission accepted by
the Minister, the process for the discharge of a magistrate
from
service is a statutory one. At the time, that is, in 2001, it
involved the following. First, the grounds of discharge were
limited
to misconduct, continued ill-health or incapacity to carry out the
duties of the office efficiently
(s 13(3)
(aA)
of the
Magistrates
Act)
[33
]
.
Second, discharge could only occur after an enquiry and
recommendation by the Commission and the provisional suspension of
the
magistrate
(s 13(3)
(a)
).
Third, the Minister was obliged to accept the recommendation of the
Commission
(s 13(3)
(aA)
).
[34]
Fourth, the Minister had to place a report before Parliament giving
the reasons for the magistrate’s suspension
(s 13(3)
(c)
).
Fifth, Parliament had to resolve either to restore the magistrate to
office or that the magistrate be removed
(s 13(3)
(d)
)
and the Minister was obliged to act upon that resolution and remove
the magistrate.
[35]
[21]
It follows that the process for dismissing
a magistrate was at the time (and remains) a statutory process.
Non-compliance with any
part of that process would have been
remediable (and still would be remediable) at the instance of the
magistrate by resort to
the high court. It would, for example, have
been open to Mr Reinecke to apply for an interdict restraining Mr
Booi from implementing
his decision to remove him from relief work
and to prevent the removal of the allowance or any deductions being
made from his salary
by way of recoupment of past payments of the
allowance. But these are public law remedies appropriate to the
resolution of a public
law dispute. They are not contractual
remedies, which are not appropriate to such a dispute.
[22]
Conspicuous in the provisions
regarding the discharge of a magistrate is that the chief magistrate
at the court where the magistrate
is stationed has no role to play in
it. In practical terms Mr Booi had no power to dismiss Mr Reinecke.
How then can his conduct
be invoked as constituting a repudiation of
the latter’s contract of employment as a magistrate? It would
be entirely anomalous
to hold that conduct by someone, who had no
power to appoint or to discharge the magistrate, could nonetheless
provide contractual
grounds upon which the magistrate subjected to
such conduct could terminate their appointment as a magistrate and
claim damages.
Yet that is the proposition that lies at the heart of
Mr Reinecke’s case. It could only be correct if Mr Reinecke had
no
other remedy available to him.
[23]
I do not think that Mr Reinecke can contend
that there was no remedy other than resignation available to him in
response to Mr Booi’s
conduct. He had available, and used in
relation to his financial claims, the grievance procedures laid down
in the regulations
to address this type of situation. If those were
unsatisfactory he could have sued to recover the amounts due to him.
He could
also have taken any adverse decision by the Commission on
review. He could have approached the high court for interdictory
relief
in response to Mr Booi removing him from relief work and
allocating him largely administrative duties. Those steps would have
brought
home to the Commission the seriousness of the situation and
enabled it to take remedial steps to address the problems. Had the
Commission disregarded his grievances, he could have sought a
mandamus to compel them to deal with them. If Mr Booi’s
treatment
of him caused the health problems of which he complained,
an action for damages based on the failure of the employer to take
reasonable
steps to protect employees from suffering injury or
ill-health in consequence of their working circumstances would have
been available.
He could have exercised, as he did, his right to take
sick leave. In other words there were a number of remedies available
to him
to enforce his rights and resolve his grievances. I leave
aside for present purposes whether he might have had remedies
available
under the Labour Relations Act 66 of 1995 (the LRA) as that
raises other issues.
[24]
It follows that, even
if he was employed under a contract of employment, it would be
inappropriate for Mr Reinecke to have the benefit
of a contractual
remedy sounding in damages in addition to the public law remedies
that were already available to him. The recognition
of such a remedy
in this case would place him in a significantly better position than
a conventional employee. For such an employee
the acceptance of a
repudiation of the contract of employment constitutes an unfair
dismissal in terms of s 186
(e)
of the LRA.
[36]
A dispute over that dismissal must follow the procedures laid down in
the LRA and the claimant’s entitlement to relief is
limited to
at most the payment of two years’ salary. Originally Mr
Reinecke referred the dispute over his resignation to
the CCMA on the
basis that he had been constructively dismissed. He sought an order
restoring him to his former position as a magistrate
in Germiston,
alternatively payment of two years’ salary. However, after a
commissioner ruled in another case involving a
magistrate that they
were not employees as defined in the LRA, he abandoned those
proceedings and brought the present action in
which he claimed a loss
of income over a period of thirty years.
[25]
In
argument counsel sought to justify this claim by reference to the
decision of this court in
Fedlife
Assurance Ltd v Wolfaardt,
[37]
where it was accepted that the
existence of remedies for unfair dismissal under the LRA does not
exclude contractual claims or the
pursuit of such claims in the
ordinary courts rather than the structures of the LRA. However, the
majority judgment in
Wolfaardt
was based upon a
finding that the circumstances of that case – a purported
premature termination of a fixed term contract
of employment,
accepted as a repudiation of that contract – did not fall
within the definition of a dismissal in the LRA,
more particularly
within s 186
(b)
of
that definition.
[38]
Neither that case, nor the later decision in
South
African Maritime Safety Authority v McKenzie
,
[39]
considered the situation of a constructive dismissal falling within
s 186
(e)
of
the LRA.
[40]
Nor did they consider the problems surrounding claims for damages by
former employees, calculated on the footing that, but for
the alleged
repudiation of the employment contract, the employee would have
enjoyed secure employment until retirement. Such claims
raise
difficult questions of causation, remoteness and the proper method
for computing damages.
[41]
In the present instance, for example, Mr Reinecke calculated his
claim on the same basis as a claim for loss of earnings in a personal
injury claim. That was manifestly inappropriate as was demonstrated
when questions were posed in the course of the appeal about
the
validity of the allowances for contingencies.
Wolfaardt
does not provide support for Mr Reinecke’s claim.
[26]
In the circumstances the appeal succeeds
and the order of the court below is altered to one dismissing the
claim. As this is a matter
involving the employment relationship in
both courts there will be no order for costs.
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For appellants:
M M Rip SC (with him Ms B
Matlejoane)
Instructed by:
The State Attorney, Pretoria and Bloemfontein
For respondent:
N Davis SC (with him R Strydom and
Ms L Coetzee)
Instructed
by: Combrink Kgatshe Inc, Rustenburg
Rosendorff Reitz Barry,
Bloemfontein.
[1]
The same advertisement included two other posts in Randburg that did
not involve the performance of relief duties. Mr Reinecke
did not
apply for either of these posts.
[2]
Van Rooyen & others v
The State & others (General Council of the Bar of SA
Intervening)
2002
(5) SA 246
(CC) (hereafter
Van
Rooyen
).
[3]
O’Brien v Ministry
of Justice
[2012]
IRLR 421
(ECJ) paras 39 and 51.
[4]
O’Brien v Ministry
of Justice
[2013]
UKSC 6
;
[2013] 2 All ER 1
(SC) para 34.
[5]
The relevant statutory provisions were s 1(2) of the Public
Service Act 27 of 1923; s 2(4) of the Public Service Act
54 of
1957 and s 2(5) of the Public Service Act 111 of 1984.
[6]
Prior to that the Governor-General appointed magistrates.
[7]
Van Rooyen
paras 102-110.
[8]
Commission of Enquiry into the Structure and Functioning of the
Courts, part I of the Fifth Report (1983) para 4.4.1.
[9]
Van Rooyen
para 79.
[10]
In
Van
Rooyen
paras 36-74
the Constitutional Court considered the composition and functioning
of the Commission and held that it is an independent
body not under
the control of the executive in the person of the Minister.
The
Commission became nominally the third defendant in the action and
the third appellant in the appeal but played no role in
the
proceedings.
[11]
The difference between the two expressions is correctly described in
the following passage from para 17 of the judgment of Griesel
J in
McDonald & others v Minister of Minerals
and Energy & others
2007 (5) SA 642
(C): ‘where the law requires a functionary to act “in
consultation with” another functionary, this too
means that
there must be concurrence between the functionaries, unlike the
situation where a statute requires a functionary to
act “after
consultation” with another functionary, where this requires no
more than that the ultimate decision must
be taken in good faith,
after consulting with and giving serious consideration to the views
of the other functionary.’
See also
Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another
as Amici
Curiae)
2006 (2) SA 311
(CC) paras 285 and
286 and
Van Rooyen
para
109.
[12]
This has subsequently been further amended so that the President
determines magistrates’ salaries after taking into
consideration
the recommendations of the Independent Commission on
the Remuneration of Public Office-bearers. However, that amendment
occurred
after the events that are in issue in this case.
[13]
The grounds for discharge of a magistrate were the same as those of
a member of the public service and the process was similar
to that
which has applied to public servants since 1912, save that the
Commission discharges the functions that the Public Service
Commission discharged in relation to public servants.
[14]
By the
Magistrates Amendment Act 35 of 1996
.
[15]
Government Employees'
Pension Fund v Strydom
2001 (3) SA 856
(SCA) para 20.
[16]
Constitution of the Republic of South Africa, Act 200 of 1993.
[17]
Schierhout v Union Government (Minister of
Justice)
1919 AD 30
, where Innes CJ (at
42-43) said: ‘The South Africa Act (sec. 101) regulates the
tenure of office of Judges, who are removable
only on an address
from both Houses of Parliament; and Act 29, 1912, sec. 1 (3), by
specially including magistrates in the Administrative
and Clerical
Division of the Public Service renders them amenable to its own
disciplinary provisions. That does not mean that
in the discharge of
their judicial functions they are not absolutely independent. In the
exercise of such functions they do not
act as the servants of the
Crown within the meaning of the Crown Liabilities Act. They perform
duties imposed upon them by law,
and the responsibility for their
decisions rests upon them alone. They are judges, entitled to
certain protection even against
the consequences of their own error;
and any attempt to influence them in the discharge of their
magisterial duties, by any form
of administrative pressure, would be
most reprehensible. But it does not follow that they are free from
censure or punishment
for what in the case of an ordinary public
servant would be misconduct, merely because it happens to be
connected with their
judicial office.’
[18]
Van Rooyen
para 54.
[19]
At that time Act 111 of 1984.
Van Rooyen
para
79.
[20]
11 March 1994.
[21]
Gibbs v Minister of Justice
[2009]
4 All SA 109
(SCA) para 9.
[22]
The initial appointment of magistrates is temporary and probationary
and based on contract. In preparing this judgment I was
furnished
through the Commission with a copy of the contract that all persons
newly appointed as magistrates are required to
sign.
[23]
In making regulations the Minister is bound by the recommendations
of the Commission.
Van Rooyen
para
128.
[24]
Regulations for Judicial Officers in the Lower Courts published in
terms of
s 16
of the
Magistrates Act in
GN R 361, GG 15524, 11 March
1994.
[25]
Promulgated under Proclamation 103 in GG 15791, 3 June 1994.
[26]
The 2012 report reflects 1935 posts on the fixed establishment of
the department.
[27]
See s 22 of the Public Service Act 54 of 1957; s 14 of the
Public Service Act 27 of 1923 and s 71 of the Public
Service
and Pensions Act 29 of 1912.
[28]
Mustapha v Receiver of Revenue, Lichtenburg
1958 (3) SA 343
(AD) at 356G-357C. See also
the discussion by Cora Hoexter ‘Contracts in Administrative
Law: Life after Formalism’
(2004) 121
SALJ
595
at 602-604.
[29]
At 347D-G.
[30]
Logbro Properties CC v
Bedderson NO & others
2003 (2) SA 460 (SCA).
[31]
Cape Metropolitan Council
v Metro Inspection Services (Western Cape) CC & others
2001
(3) SA 1013 (SCA).
[32]
Stewart Wrightson (Pty) Ltd v Thorpe
1974
(4) SA 67
(D) at 77H-78H. This court expressly approved Miller J’s
approach in the subsequent appeal.
Stewart
Wrightson (Pty) Ltd v Thorpe
1977 (2) SA 943
(AD) at 951G-H. In
Union Government (Minister
of Justice) v Schierhout
1922 AD 179
at 184
it was held that similar treatment of a magistrate was degrading.
[33]
This provision has subsequently been amended although the grounds
for discharge remain the same. The section is referred to as
it
stood at the time.
[34]
This is a power combined with a duty.
Van
Rooyen
paras 181 and 182.
[35]
Van Rooyen
para 186.
[36]
Jooste v Transnet Ltd t/a South African
Airways
(1995) 16
ILJ
629 (LAC) at 636-638.
[37]
Fedlife Assurance Ltd v
Wolfaardt
2002 (1)
SA 49 (SCA).
[38]
Para 18.
[39]
South African Maritime
Safety Authority v McKenzie
2010
(3) SA 601 (SCA).
[40]
In
Edwards v Chesterfield Royal Hospital NHS
Foundation Trust
[2011] UKSC 58
;
[2012] 2
All ER 278
(SC) the Supreme Court, by a majority, held that a
contractual claim based on a failure to observe the contractually
agreed terms
regarding procedures leading up to dismissal was
precluded by the terms of the legislation that afforded a statutory
claim for
unfair dismissal.
[41]
Catherine Barnard and Louise Merrett ‘Winners and Losers:
Edwards
and the Law
of Unfair Dismissal’
[2013] 72
CLJ
313
at 335-340.