Phalafala and Others v Member of Executive Council for Education, Limpopo Province and Others (3697/2018) [2022] ZALMPPHC 23 (16 May 2022)

82 Reportability

Administrative Law

Brief Summary

Jurisdiction — High Court jurisdiction — Dispute regarding incentive policy for teachers — Applicants alleged unlawful exclusion from incentive payments — Respondents contended that dispute was a labour matter falling under exclusive jurisdiction of Labour Court — High Court held it had jurisdiction to adjudicate the matter as it involved administrative action and potential infringement of constitutional rights — Jurisdiction not ousted by Labour Relations Act where claims do not exclusively fall within its provisions.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings concerned a point in limine raised by the respondents challenging the jurisdiction of the Limpopo Division of the High Court to entertain the applicants’ application. The applicants were Phalafala, Pheeha Aubrey and 321 others, who were teachers employed in the public education sector. The respondents were the Member of the Executive Council for Education, Limpopo Province, the Head of Department, Education, Limpopo Province, and the Minister of Basic Education.

The matter came before the court on a special allocation in January 2022. Shortly before that hearing, the respondents sought leave to file a further affidavit contending that the main application had become moot. The applicants sought a postponement to consider the additional issues raised, and the matter was postponed to 25 February 2022 with directives for further filings. On 25 February 2022, the court, being seized only with the preliminary question, heard argument solely on jurisdiction, with the understanding that if jurisdiction were confirmed, the remaining issues would be adjudicated by another judge on a later allocated date.

The broader dispute arose from the implementation of a teacher incentive policy published in the Government Gazette by the then Minister of Education. The policy set criteria for provincial Heads of Department to determine which teachers qualified for payment of the incentive. The applicants alleged that they were excluded from the incentive payment and that the exclusion was unlawful, irrational, and discriminatory. The application was framed as a challenge to the implementation decision(s) as administrative action, seeking relief by way of review.

A significant procedural history preceded the present application. The applicants had previously instituted action proceedings under a different case number, in which the Department raised jurisdictional objections on the basis that the dispute was a “pure labour dispute” falling within the Labour Court’s exclusive jurisdiction. The earlier jurisdictional objection was rejected, the action proceeded, and subsequent developments culminated in a full court finding that the impugned decisions were administrative in nature and that action proceedings were inappropriate, prompting the current review application.

2. Material Facts

An incentive policy applicable to teachers was issued in the Government Gazette by the then Minister of Education. The policy prescribed criteria to be applied by the relevant Provincial Head of Department in identifying teachers who qualified for payment of the incentive. The applicants were teachers who contended that, notwithstanding the policy, they were excluded from receiving the incentive.

Prior to the present application, the applicants instituted action proceedings in the then Polokwane Circuit Court of the North Gauteng High Court, Pretoria, seeking orders directing payment of the incentive allowance to each of them in accordance with the policy. In those action proceedings, the Department defended the claim and raised an exception that the High Court lacked jurisdiction because the dispute was a labour matter falling under the Labour Court’s exclusive jurisdiction in terms of the Labour Relations Act 66 of 1995. That jurisdictional objection was rejected, and pleadings were exchanged.

The parties in the earlier action later agreed to proceed on a stated case, asking the court to determine whether the plaintiffs were entitled to rural incentives considering the criteria, and to determine the status of the documents and whether, if constituting official policy, they unfairly discriminated against or excluded the plaintiffs. The respondents’ stance was that the applicants did not meet the criteria, and that if the policy or implementation were unfair, the proper course would be review proceedings to set aside the criteria and/or its implementation.

The matter ultimately reached a stage where Makgoba JP found in favour of the applicants and awarded costs. On appeal to a full court, the appeal was upheld on the basis that decisions by the Head of Department were administrative decisions, and that an aggrieved party should pursue review rather than action proceedings. Following that appeal outcome, the applicants launched the present application seeking to review and set aside the decisions or determinations by the Head of Department relating to implementation of the policy.

For purposes of the jurisdiction determination in this judgment, the court treated it as material that the applicants framed their claim as grounded in constitutional and administrative-law rights, and that the respondents raised a jurisdictional challenge contending the dispute was, properly characterised, an employment-related benefits dispute falling within the Labour Relations Act’s dispute-resolution mechanisms.

3. Legal Issues

The central legal question was whether the High Court had jurisdiction to entertain the applicants’ application, or whether jurisdiction lay exclusively with the Labour Court by virtue of section 157(1) of the Labour Relations Act 66 of 1995, given that the dispute arose in an employment context and concerned payment of an incentive said to constitute a benefit.

The dispute required the court to determine a jurisdictional question of law, informed by the characterisation of the cause of action as pleaded by the applicants, and by the statutory and constitutional allocation of jurisdiction between the High Court and the Labour Court. The inquiry was not directed at the merits of whether the applicants were entitled to the incentives, but rather at whether the applicants’ pleaded case invoked a cause of action (administrative-law review under section 33 of the Constitution and PAJA) that the High Court was competent to adjudicate.

4. Court’s Reasoning

The court approached jurisdiction with reference to the Constitution as the primary source of judicial authority. Section 169(1) of the Constitution provides that a High Court may decide any constitutional matter (subject to certain exceptions) and any other matter not assigned by an Act of Parliament to another court of similar status. Against that constitutional framework, the respondents relied on section 157(1) of the Labour Relations Act 66 of 1995, arguing that the Labour Court had exclusive jurisdiction because the dispute was employment-related and concerned the provision of benefits, which (on their argument) ought to be pursued as an unfair labour practice through section 191(5) mechanisms.

In addressing this contention, the court emphasised that not every employment-related dispute falls within the Labour Court’s exclusive jurisdiction. The judgment recognised the overlap between labour and administrative remedies, particularly for public sector employees, and noted that section 157(2) of the Labour Relations Act contemplates concurrent jurisdiction between the Labour Court and the High Court in certain contexts.

The court relied on authority indicating that the existence of a remedy under the Labour Relations Act does not, without more, oust the High Court’s jurisdiction. It specifically drew on the reasoning in Boxer Superstores Mthatha v Mbenya to the effect that section 157(1) does not confer exclusive jurisdiction on the Labour Court generally in all disputes arising within the sphere of employment relations; rather, exclusivity depends on whether the claim, as formulated, falls within the Labour Court’s exclusive jurisdiction. The judgment treated this as consistent with the idea that particular conduct may give rise to multiple causes of action, and that a litigant is not compelled to pursue an LRA-based cause of action simply because it is available.

In applying these principles, the court placed substantial weight on Constitutional Court guidance that jurisdiction is determined from the pleadings, not from the substantive merits. The court cited Baloyi v Public Protector for the proposition that the same facts may give rise to different causes of action, and that even where a dispute arises in the employment realm, that fact alone does not exclude the High Court’s jurisdiction. The court considered the applicants’ papers in their entirety to identify the cause of action advanced, and concluded that the applicants had located their case within section 33 of the Constitution and sought to challenge the Head of Department’s implementation of the incentive policy as administrative action susceptible to review.

The court further noted that the parties were in agreement that the decision under attack was administrative in nature. On that basis, and applying the pleaded-case approach endorsed in Gcaba v Minister for Safety and Security and reiterated in Baloyi, the court concluded that the High Court had concurrent jurisdiction with the Labour Court.

On costs, the court reasoned that the respondents’ persistence with the jurisdiction point was not justified in context. The respondents had previously raised jurisdiction in earlier proceedings, where the court found against them and that order was not appealed. Moreover, in the appeal against Makgoba JP’s decision, the respondents themselves contended that their decision was administrative in nature and that judicial review was the proper course. The court regarded it as established that the High Court has jurisdiction to review administrative decisions, and found that the respondents’ continued insistence on exclusive Labour Court jurisdiction was ill-advised and disingenuous. Costs were therefore ordered to follow the result.

5. Outcome and Relief

The High Court dismissed the respondents’ point in limine challenging jurisdiction. The court held that it had concurrent jurisdiction with the Labour Court to adjudicate the review application as pleaded.

The court granted an order that the jurisdictional point was dismissed with costs, including the costs of Senior Counsel. The merits of the review application were not determined in this judgment and were to be dealt with separately by another judge if allocated.

Cases Cited

Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC)

Chirwa v Transnet Limited and Others (2008) 29 ILJ 73 (CC)

Boxer Superstores Mthatha v Mbenya [2007] 8 BLLR 693 (SCA)

Baloyi v Public Protector [2021] 42 ILJ 961 (CC)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 33, 38, 169(1))

Labour Relations Act 66 of 1995 (sections 157(1), 157(2), 158(1)(h), 191(5))

Promotion of Administrative Justice Act 3 of 2000

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, on the applicants’ pleadings, the claim was located within the constitutional right to just administrative action and was framed as a challenge to an administrative decision concerning implementation of an incentive policy. Applying the principle that jurisdiction is determined by the pleadings rather than the merits, the court found that the High Court’s jurisdiction was not excluded merely because the dispute arose in an employment context and could potentially have been formulated under labour-law mechanisms. The High Court and the Labour Court accordingly enjoyed concurrent jurisdiction, and the respondents’ jurisdictional objection was dismissed with costs, including the costs of Senior Counsel.

LEGAL PRINCIPLES

The judgment applied the principle that the allocation of jurisdiction between the High Court and the Labour Court depends on the cause of action as pleaded, not on an assessment of the substantive merits or on the mere fact that the dispute arises from an employment relationship.

It reaffirmed that section 157(1) of the Labour Relations Act 66 of 1995 does not oust High Court jurisdiction in all employment-related disputes. Where a litigant pleads a cause of action sounding in constitutional or administrative law—particularly review of administrative action under section 33 of the Constitution and PAJA—the High Court may have jurisdiction even if the facts could also support an LRA-based claim.

The judgment further reflected the understanding that the same factual matrix can generate multiple potential causes of action, and that a litigant is not necessarily compelled to pursue an LRA remedy simply because it exists. In public sector employment disputes, overlap between labour and administrative remedies may result in concurrent jurisdiction, especially in light of section 157(2) of the Labour Relations Act.