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[2009] ZASCA 69
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Makhanya v University of Zululand (218/08) [2009] ZASCA 69; 2010 (1) SA 62 (SCA) ; [2009] 8 BLLR 721 (SCA) ; [2009] 4 All SA 146 (SCA); (2009) 30 ILJ 1539 (SCA) (29 May 2009)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 218/08
EDWARD MBUYISELO MAKHANYA Appellant
and
THE UNIVERSITY OF ZULULAND Respondent
Neutral citation:
Makhanya v University of Zululand
(218/08)
[2009] ZASCA 69
(29 May 2009)
Coram:
NUGENT, LEWIS & SNYDERS JJA
Heard:
5 MAY 2009
Delivered:
29 MAY 2009
Summary:
Employment â claim to enforce contract â
alternative remedies available under
Labour Relations Act 1995
â
whether high court had jurisdiction to consider claim.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: High Court Durban (Hugo J sitting as
court of first instance)
1 The appeal is upheld with costs. The order of the
court below is set aside and the following orders are substituted:
â
(a) Both special pleas are dismissed with costs.
(b) The action is postponed sine die for disposal of
the remaining issuesâ.
2 The matter is remitted to the high court.
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
NUGENT JA (LEWIS and SNYDERS JJA CONCURRING)
[1] Professor Makhanya instituted an action against the
University of Zululand in the High Court at Durban. The particulars
of claim
were straightforward. Makhanya said that he had been
employed by the University under a contract of employment. He said
that the
University had purported to terminate the contract in breach
of its terms. That notwithstanding, said Makhanya, he had continued
to render his services, or at least he had tendered to do so. But the
University had not paid him his remuneration and other moneys
to
which the contract entitled him, and he claimed orders compelling it
to do so. (Two separate claims were made but they were
in truth a
single claim and I will refer to them together in the singular. An
additional claim was made that does not feature in
this appeal.)
THE JURISDICTIONAL CHALLENGE
[2] In a special plea the University challenged the
jurisdiction of the high court to consider the claim. The
jurisdictional challenge
is curious because claims for the
enforcement of contracts are commonplace in the high courts. Some
eight years ago it was argued
before this court â in
Fedlife
Assurance Ltd v Wolfaardt
1
â that claims for the enforcement of contracts of employment had
been excluded from the jurisdiction of the high courts by the
Labour
Relations Act 66 of 1995 (LRA) but that argument was rejected,
2
and is not sought in this case to be revived. And if there is any
residual doubt as to whether a high court has the power to consider
such a claim it is put to rest by s 77(3) of the Basic Conditions of
Employment Act 75 of 1997 (BCEA), which was enacted after
the LRA,
and which makes it perfectly clear that the high courts have not been
divested of their ordinary jurisdiction to enforce
contracts of
employment (the section confers equivalent jurisdiction on the Labour
Court also to consider such claims).
[3] One asks in those circumstances on what basis the
jurisdictional objection could possibly have been taken? Because the
objection
was upheld by the court below, and it dismissed the claim
on that ground. This appeal is against that order and it is before us
with the leave of that court.
[4] Whatever explanation is given invariably leads one
back to the decision of the Constitutional Court in
Chirwa
v Transnet Ltd
,
3
in which the majority expressed the view that the high court had no
jurisdiction to consider the claim in that case. I will return
to
that decision in some detail later in this judgment.
[5] This case is not materially different to
Chirwa
â I will expand upon that later in this judgment â and any
attempt to distinguish them on their facts would be no more than
a
makeweight. That is the difficulty that now confronts us. On the one
hand
Fedlife
(which
seems to have had the approval of that court) and the BCEA make it
clear that the high court has jurisdiction in this case.
On the other
hand if we are bound to apply the view expressed by the majority in
Chirwa
then we must
reach the opposite conclusion.
[6] The doctrine of precedent, which requires courts to
follow the decisions of coordinate and higher courts, as Cameron JA
said
in this court in
True Motives 84 (Pty)
Ltd v Mahdi
,
4
is an intrinsic feature of the rule of law,
which is in turn foundational to our Constitution. He went on to say:
âWithout precedent there would be no certainty, no predictability
and no coherence. The courts would operate in a tangle of unknowable
considerations, which all too soon would become vulnerable to whim
and fancy. Law would not rule. The operation of precedent, and
its
proper implementation, are therefore vital constitutional questions.â
[7] He pointed out that âat this tender stage of our
legal development, the doctrine of precedent has special importanceâ
and
warned that âthis court should not lay itself open to the â¦
complaint that it is violating the rule of law by illegitimately
disregarding or evading [Constitutional Court] precedentsâ.
5
But he also observed that:
âit is well established that precedent is limited to the binding
basis (or
ratio decidendi
) of previous decisions. The doctrine
obliges courts of equivalent status and those subordinate in the
hierarchy to follow only
the binding basis of a previous decision.
Anything in a judgment that is subsidiary is considered to be âsaid
along the waysideâ,
or âstated as part of the journeyâ (
obiter
dictum
), and is not binding on subsequent courts.â
6
[8] The law does not exist in discrete boxes, separate
from one another. While its rules as they apply in various fields are
often
collected together under various headings, that is for
convenience of academic study and treatment, and should not be
allowed to
disguise the fact that the law is a seamless web of rights
and obligations that impact upon one another across those fields. If
the ratio of
Chirwa
is
as I have stated it, as the court below considered it to be, then the
majority must be taken to have implicitly overruled the
decision in
Fedlife.
And the
express reservation in the BCEA of the ordinary power of a high court
to consider contractual claims would need in some
way to be
explained. And the question would arise as to what further
limitations it might impose on the ordinary power of the high
courts
in other cases. And so it could go on, because a domino that falls
usually sets off a cascade.
[9] Apart from its jurisdictional finding the majority
in
Chirwa
also found
that the claim was bad in law. What is most striking about that case
is that the two findings are mutually destructive
and cannot both
have provided the ratio for the order that was made. I deal with that
more fully later but for the moment I need
only say that if the high
court (and by extension the court on appeal) had no jurisdiction in
the matter then that ought to have
been an end of the matter: by its
own decision it would have had no power to dismiss the claim on its
merits. Conversely, if the
ratio for the order was that the claim was
bad in law, it follows that it must have had the power to make that
finding. The ratio
may be one or the other but it cannot be both.
[10] For those reasons I think that we must be most
circumspect before accepting without question that that was indeed
the ratio
of
Chirwa,
thereby taking this court along a path that it has not taken before,
and for the proper disposal of this appeal we cannot avoid
enquiring
into that question. That enquiry seems to me to be best undertaken by
starting with first principles, which I do before
turning to the
decision in that case.
HOW THE PROBLEM ARISES
[11] The LRA creates certain rights for employees that
include âthe right not to be unfairly dismissed and [not to be]
subjected
to unfair labour practicesâ.
7
I will refer to those rights interchangeably as âLRA rightsâ. Yet
employees also have other rights, in common with other people
generally, arising from the general law. One is the right that
everyone has (a right emanating from the common law) to insist upon
performance of a contract. Another is the right that everyone has (a
right emanating from the Constitution and elaborated upon
in the
Promotion of Administrative Justice Act) to just administrative
action.
8
[12] Thus there is the potential (I emphasise that I
refer only to the potential) for three separate claims to arise when
an employeeâs
contract is terminated. One is for infringement of
his or her LRA right. Another is for infringement of his or her
common law right.
And where it occurs in the public sector, a third
is for infringement of his or her constitutional right.
[13] An LRA right is enforceable only in the Commission
for Conciliation, Mediation and Arbitration (CCMA)
9
or in the Labour Court.
10
(I will refer to them interchangeably as the âLabour Forumsâ
except where it becomes necessary to distinguish them). The common
law right is enforceable in the high courts
11
and in the Labour Court.
12
And the constitutional right is enforceable in the high courts
13
and in the Labour Court.
14
[14] It is convenient to pause for a moment to make an
observation with regard to the enforceability in the high court of
that constitutional
right. There is some suggestion in the judgment
of Ngcobo J in
Chirwa
that s 157(2) of the LRA might somehow have divested the high
courts of their ordinary power to consider claims to enforce
a
constitutional right arising from employment (the claim that was made
in
Chirwa
)
15
and in that context it was suggested that the use of the word
âconcurrentâ in s 157(2) might have been unfortunate.
16
That suggestion might be founded upon a misconception and I do not
think it can be correct.
[15] The section so far as it is now relevant reads as
follows:
â157 Jurisdiction of Labour Court
(1) Subject to the Constitution and section 173, and except where
this Act provides otherwise, the Labour Court has exclusive
jurisdiction in respect of all matters that elsewhere in terms of
this Act or in terms of any other law are to be determined by
the
Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court
in respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from â
(a) employment and from labour relationsâ¦â
[16] It is important to bear in mind that s 157(2) does
not purport to confer jurisdiction on the high courts. The power to
consider
claims for the alleged violation of constitutional rights,
whether in the employment sphere or otherwise, is assigned to them by
the Constitution. Section 157(2) does no more than to confer
equivalent jurisdiction upon the Labour Court.
[17] A statute that confers power on a special court
might often say expressly that it is to be exercised âconcurrentlyâ
so
as to remove ambiguity. But in s 157, in which the conferring of
exclusive and concurrent jurisdiction is dealt with in separate
subsections, there is no room for ambiguity, and the word
âconcurrentâ is superfluous. A construction of subsection (2)
that
divests the high courts of their ordinary power in such matters,
and assigns it to the Labour Court exclusively, would require a
major
rewriting of the section as a whole, and not merely the deletion of
the word âconcurrentâ.
17
It would mean that subsection (2) as a whole is superfluous, and
would also call for subsection (1) to be rewritten so as to assign
that power exclusively to the Labour Court. The section simply does
not open itself, by any form of interpretation, to being
reconstructed
in that way. The section clearly recognises the
existence of the high courtâs original jurisdiction in such matters
and merely
extends it to the Labour Court as well.
[18] Thus to summarise:
The Labour Forums have exclusive power to enforce LRA
rights (to the exclusion of the high courts).
The high court and the Labour Court both have the power
to enforce common law contractual rights.
The high court and the Labour Court both have the power
to enforce constitutional rights so far as their infringement arises
from
employment.
[19] I turn to what happened in this case. In
consequence of the termination of his employment Makhanya at first
pursued a claim
for infringement of his LRA right in the CCMA where
it ultimately failed (I elaborate upon that later). The University
now alleges
that because Makhanya pursued a claim for enforcement of
his LRA right (in the CCMA) the high court has no power to consider
his
claim for enforcement of his contractual right.
[20] Much the same happened to Ms Chirwa, who was
employed in the public sector. When Transnet terminated her
employment Ms Chirwa
at first pursued a claim for infringement of her
LRA right in the CCMA (she did not take it to conclusion but that is
not material).
She then instituted a claim in the high court for
infringement of her constitutional right. It was because Ms Chirwa
had pursued
a claim for enforcement of her LRA right (in the CCMA)
that the majority concluded, as I understand it, that the high court
had
no power to consider her claim for enforcement of her
constitutional right.
[21] But for the fact that the right that was asserted
in each case was different â which is not material to the
jurisdictional
issue â the two cases are materially
indistinguishable. It seems to me that what has confused matters in
both cases is that a
claim for enforcement of an LRA right has become
muddled with a separate claim for the enforcement of a right arising
outside the
LRA (in this case a claim for the enforcement of a
contractual right and in
Chirwa
a claim for enforcement of a constitutional right).
JURISDICTION GENERALLY
[22] The power of a court to entertain a claim derives
from the power that all organised states assume to themselves to
bring to
an end disputes amongst their inhabitants that are capable
of being resolved by resort to law. Disputes of that kind are brought
to an end either by upholding a claim that is brought before it by a
claimant or by dismissing the claim. By so doing the order
either
permits or denies to the claimant the right to call into play the
apparatus of the state to enforce the claim.
[23] The original power of the state to bring disputes
to an end (its judicial authority) is assigned in this country to the
high
courts by the Constitution.
18
(I speak in general terms and do not deal with limitations that are
not relevant to this case.) Judicial power is the power both
to
uphold and to dismiss a claim. It is sometimes overlooked that the
dismissal of a claim is as much an exercise of judicial power
as is
the upholding of claim. A court that has no power to consider a claim
has no power to do either (other than to dismiss the
claim for want
of jurisdiction).
[24] In general the high courts thus exercise the
original authority of the state to resolve all disputes, of any kind,
that are
capable of being resolved by a resort to law, unless that
authority has been assigned to another court. When a high court
resolves
a contractual claim it exercises that original jurisdiction.
When it considers a claim for enforcement of a constitutional right
it exercises that original jurisdiction. So too when it enforces a
statutory right.
[25] But the state might also create special courts to
resolve disputes of a particular kind. Generally those will be
disputes concerning
the infringement of rights that are created by
the particular statute that creates the special court (though that
will not always
be so). When a statute confers judicial power upon a
special court it will do so in one of two ways. It will do so either
by (a)
conferring power on the special court and simultaneously (b)
excluding the ordinary power of the high court in such cases (it does
that when âexclusive jurisdictionâ is conferred on the special
court). Or it will do so by conferring power on the special
court
without excluding the ordinary power of the high court (by conferring
on the special court jurisdiction to be exercised concurrently
with
the original power of the high courts). In the latter case the claim
might be brought before either court.
[26] In the present context exclusive jurisdiction to
enforce LRA rights has been assigned to the Labour Forums. But in
respect
of the enforcement of both contractual and constitutional
rights the high courts retain their original jurisdiction assigned to
them by the Constitution. In both cases equivalent jurisdiction has
been conferred upon the Labour Court to be exercised concurrently
with the high courts.
[27] Naturally a claim that falls within the concurrent
jurisdiction of both the high court and a special court could not be
brought
in both courts. A litigant who did that would be confronted
in one court by either a plea of lis pendens (the claim is pending in
another court) or by a plea of res judicata (the claim has been
disposed of by the other court). A claimant who has a claim that
is
capable of being considered by either of two courts that have
concurrent jurisdiction must necessarily choose in which court
to
pursue the claim and, once having made that election, will not be
able to bring the same claim before the other court. But where
a
person has two separate claims, each for enforcement of a different
right, the position is altogether different, because then
both claims
will be capable of being pursued, simultaneously or sequentially,
either both in one court, or each in one of those
courts.
PLEADING JURISDICTIONAL CHALLENGES
[28] When cases come before a court on appeal or on
application the issues are presented to the court simultaneously and
that might
at times obscure the various issues if they logically
arise sequentially. I think it is useful, for proper analysis in such
cases,
to envisage how they would have arisen in an action, where the
issues are often pleaded and disposed of sequentially.
[29] Jurisdictional challenges will be raised either by
an exception or by a special plea, depending on the grounds upon
which the
challenge arises. There will be some cases in which the
jurisdiction of a court is dependent upon the existence of a
particular
fact (often called a âjurisdictional factâ). Where the
existence of that fact is challenged it will usually be in a special
plea, and the matter will proceed to a factual enquiry confined to
that issue. In other cases the existence or otherwise of jurisdiction
to consider the case will appear from the particulars of claim and in
those cases the challenge will be raised by an exception.
In such
cases a court that considers the challenge might not even be aware of
whether or not the plaintiff intends raising any
defence at all to
the claim. But in both cases the issue must necessarily be disposed
of first, because upon it depends the power
of the court to make any
further orders.
[30] The case before us is one in which the challenge is
not dependent upon the existence of a jurisdictional fact but instead
upon
the nature of the claim. Because the nature of the claim will be
apparent from the particulars of claim a jurisdictional challenge
will conventionally be raised in an exception to the particulars of
claim.
[31] The disposal of a jurisdictional challenge on
exception ought to be elementary, because it entails no more than a
factual enquiry,
with reference to the particulars of claim, to
establish the nature of the right that is being asserted in support
of the claim.
Sometimes the right that is asserted might be
identified expressly. At other times it might be discoverable by
inference from the
facts that are alleged and the relief that is
claimed. And if there is any doubt a court might simply ask the
litigant to commit
himself or herself to what the claim is before the
court embarks upon the case.
[32] Applying those principles of pleading it is
worthwhile considering what would have happened had Ms Chirwa brought
her claim
in an action, on particulars of claim that alleged the
material facts, and went on to allege that the conduct complained of
infringed
her constitutional right to just administrative action, and
to claim appropriate relief.
[33] An exception to the particulars of claim, on the
basis that the high court lacked jurisdiction to consider the claim,
would
have been taken and disposed of first, with reference only to
the particulars of claim. Indeed, had the matter been pleaded
conventionally,
the court hearing the jurisdictional exception would
not even have been aware that a further exception (on the basis that
the claim
was bad in law) was waiting in the wings. It would have
been called upon to consider the jurisdictional issue with reference
to
the particulars of claim, on the assumption that the claim was
good in law. Clearly the exception could not have been sustained,
because it is manifest from the Constitution that the high court has
jurisdiction to consider such a claim. But if the court had
(unaccountably) upheld the exception, then the matter would have
ended there, and the challenge to the validity of the claim would
not
even have arisen.
[34] Some surprise was expressed in
Chirwa
at the notion that a plaintiff might formulate his or her claim in
different ways and thereby bring it before a forum of his or
her
choice but that surprise seems to me to be misplaced.
19
A plaintiff might indeed formulate a claim in whatever way he or she
chooses â though it might end up that the claim is bad.
But if a
claim, as formulated by the claimant, is enforceable in a particular
court, then the plaintiff is entitled to bring it
before that court.
And if there are two courts before which it might be brought then
that should not evoke surprise, because that
is the nature of
concurrent jurisdiction. It might be that the claim, as formulated,
is a bad claim, and it will be dismissed for
that reason, but that is
another matter.
COMMON FEATURES OF THE CASES
[35] The first case that came before this court that
purported to raise a jurisdictional challenge of this nature was
Fedlife.
20
Other cases followed that also purported to
raise such jurisdictional challenges, which include
United
National Public Servants Association of SA v Digomo NO
,
21
Boxer Superstores, Mthatha v Mbenya,
22
Fredericks v MEC for Education and Training, Eastern Cape,
23
and they continue with a regularity that is
becoming alarming. Upon proper analysis none of those cases was about
jurisdiction at
all.
24
They were about whether the claimant had a good claim in law.
[36] All those cases, as well as this case and
Chirwa
,
have three features in common. The first is that the claimant was an
employee. From that arises the second common feature, which
is that
the claimant had an LRA right. The third is that the claimant
asserted that he or she also had a right that arose outside
the terms
of the LRA. (I do not say that the claimant necessarily had the right
that was asserted. I say only that he or she asserted
that right.)
That right in each case was either the right at common law to exact
performance of a contract, or it was the constitutional
right to just
administrative action.
[37] The claim in each case arose from the termination
of the contract of employment. That fact had the potential to found a
claim
for relief for infringement of the LRA right. But it also had
the potential to found, in addition, a claim for relief for
infringement
of the other right that was asserted. Thus in every case
the claimant had a potential claim for enforcement of an LRA right
(which
was enforceable only in a Labour Forum). In every case the
claimant also had a potential claim for enforcement of a right that
fell outside the LRA (enforceable either in the high court or in the
Labour Court).
[38] It follows from this that the claimant in each case
was capable of pursuing both claims in the Labour Court,
25
either simultaneously or in succession (because they were different
claims). In one claim the Labour Court (as one of the Labour
Forums)
would be asked to enforce an LRA right (falling within the exclusive
power of the Labour Forums). And in the other claim
it would be asked
to enforce a right falling outside the LRA (but within the concurrent
jurisdiction of the Labour Court). Similarly
the claimant would have
been capable of bringing one claim (the claim to enforce an LRA
right) in a Labour Forum and to bring the
other claim (for
enforcement of the right arising outside the LRA) simultaneously, or
sequentially, in the high court.
[39] None of that should evoke surprise. It is the
natural consequence of a claimant asserting two claims, each of which
is capable
of being brought in a different forum. That two claims
arising from common facts might be asserted, whether separately or in
the
alternative, is not unusual. Whether the assertion will succeed
is another matter, but that is irrelevant to the jurisdictional
question.
TWO CLAIMS ARISING FROM COMMON FACTS
[40] It is not unusual for two rights to be asserted
arising from the same facts. That is what occurred in a leading case
that came
before this court, which I find to be most instructive in
the present context.
[41] In
Lillicrap, Wassenaar and
Partners v Pilkington Brothers (SA)(Pty) Ltd
26
the plaintiff said that it had two distinct claims arising from
precisely the same facts. The facts were briefly these. A company
(the plaintiff) contracted with a firm of professional engineers (the
defendant) to provide professional services. The company
was not
satisfied with the way in which the engineers performed their
services. The facts were capable of founding a claim for
breach of
contract. But the company chose instead to sue the engineers in
delict for negligence. That was a novel claim, because
a delictual
right arising in those circumstances had not been recognised in law
before. The defendant opposed the claim on the
basis that the claim
was bad in law because the right that was asserted did not exist.
[42] The facts that were relied upon in support of the
delictual claim corresponded with the facts that would have supported
a claim
in contract. What the court was being asked to do was to
recognise that the company had two separate claims arising from the
same
set of facts. This is how the court expressed the question that
was before it:
27
âThe only infringement of which the [company] complains is the
infringement of the [engineersâ] contractual duty to perform
specific professional work with due diligence; and the damages which
the [company] claims, are those which would place it in the
position
it would have occupied if the contract had been properly performed.
In determining the present appeal we accordingly have
to decide
whether the infringement of this duty is a wrongful act for purposes
of Aquilian liability.â
[43] As it turns out the court declined to recognise the
right that was asserted (the delictual right) and the claim was thus
dismissed
as being bad in law, but that is not important for present
purposes. What is important is that the plaintiff was entitled to ask
a court to exercise its power to consider and rule upon the claim
notwithstanding that the company might equally have founded a
claim
on another right.
[44] I think it is useful for present purposes to
consider what might have happened in that case had there been a
special court
with exclusive jurisdiction to deal with claims for the
enforcement of contracts. Would it have made any difference to
whether
the high court had the power to consider the claim that was
before it?
[45] I think it is patent that the high court would not
have declined to consider the claim (a claim that asserted a right in
delict)
only because the company had an alternative claim arising
from the same facts (a claim that asserted a right in contract)
enforceable
in another court. The claim that was before it was a
claim in delict and it fell within the power (and the duty) of the
high court
to consider that claim (if only to dismiss it). That there
was another claim enforceable in another court was irrelevant. That
can be tested by asking what would have happened had the two claims
been brought simultaneously (one in either court). Clearly neither
could have been met by a plea of lis pendens. Nor, if one was
dismissed in one court (which is what occurred), could a plea of
res
judicata have succeeded in relation to the other.
[46] The existence of a right might nonetheless be
relevant to a claim asserting another right arising from the same
facts but in
an altogether different context. The fact that the
plaintiff already enjoys a right arising from those facts (for
example, a contractual
right) might be thought by the court to be
sufficient to protect his or her interests, and thus persuade it that
another right
(a delictual right) should not be recognised. That is
what occurred in
Lillicrap
.
The court found that the company was capable of protecting itself
adequately by its contract, and thus it was not necessary for
the law
to recognise a delictual right in addition.
28
But that has nothing to do with jurisdiction. It has to do with
whether the claim is a good claim.
EXPLANATIONS
THAT HAVE BEEN ADVANCED FOR JURISDICTIONAL CHALLENGES
[47] With all that in mind it is difficult to see how a
jurisdictional challenge could be maintained in this case, or in any
of
the cases I have mentioned. The claim in each case falls clearly
within the ordinary power of the high court, and the fact that
the
claimant had another claim (to enforce LRA rights) is irrelevant (on
the jurisdictional issue).
[48] Explanations that have been advanced, both in this
and other cases, have always resolved themselves, in one way or
another,
into one or other of three unacceptable propositions. I
propose in this case to deal with each explanation separately. Two of
those
explanations presented themselves in this case. I will deal
with each under a heading that summarises the proposition that the
explanation comes down to upon analysis. But first I need to
elaborate upon how the issue arose in this case.
[49] Two special pleas were filed. One special plea
raised the jurisdictional challenge. The other raised a defence to
the claim.
In both cases the relevant plea was founded upon
substantially the same allegations. In the special plea relating to
jurisdiction
it was alleged that Makhanya had âpursued [the claim]
through the CCMAâ, that an arbitration had been held and an award
had
been made, that Makhanya had at first applied to the Labour Court
to review the award but had abandoned the application, and that
âby
virtue of ⦠[Makhanyaâs] election to proceed with the aforesaid
[claim] in the CCMA and the Labour Courtâ the high
court had no
jurisdiction to consider the claim.
[50] In the other special plea it was alleged that the
disposal of the claim by the arbitrator of the CCMA gave rise to a
good defence
of res judicata (the allegation being that the claim in
the high court was the same claim that had been disposed of by the
arbitrator).
The First Unsound Proposition:
The
court has no jurisdiction because the claim is a bad claim.
[51] The submissions that were made before us by counsel
for the University, when examined, came down to asserting that
proposition.
That submission was founded upon the allegation in the
special plea that the two claims (the claim in the CCMA and the claim
in
the high court) were the same claim. In truth that is not correct,
but I will assume its correctness for present purposes. Upon
that
supposition counsel submitted that because the claim had been
disposed of finally by the CCMA the high court had no jurisdiction
in
the matter. Her submission, in short, was that the court had no power
in the matter because the University had a good defence
to the claim.
[52] I have pointed out that the term âjurisdictionâ,
as it has been used in this case, and in the related cases that I
have
mentioned, describes the power of a court to consider and to
either uphold or dismiss a claim. And I have also pointed out that
it
is sometimes overlooked that to dismiss a claim (other than for lack
of jurisdiction) calls for the exercise of judicial power
as much as
it does to uphold the claim.
[53] The submission that was advanced by counsel invites
the question how a court would be capable of upholding the defence
(and
thus dismissing the claim) if it had no power in the matter at
all. Counsel could provide no answer â because there is none.
[54] There is no answer because the submission offends
an immutable rule of logic, which is that the power of a court to
answer
a question (the question whether a claim is good or bad)
cannot be dependent upon the answer to the question. To express it
another
way, its power to consider a claim cannot be dependent upon
whether the claim is a good claim or a bad claim. The Chief Justice,
writing for the minority in
Chirwa
,
expressed it as follows:
29
âIt seems to me axiomatic that the substantive merits of a claim
cannot determine whether a court has jurisdiction to hear itâ.
[55] I make no apology for repeating that rule of logic
in various ways throughout this judgment. It has often been ignored
in cases
purporting to raise jurisdictional objections of the kind
that is now before us.
[56] Even if the University indeed has a good defence to
the claim along the lines that I have indicated that is irrelevant to
the
question whether the high court had the power to consider the
claim, if only to dismiss it. The submission by counsel that the
court had no jurisdiction in the matter because there is a good
defence is not capable of being sustained, merely as a matter of
logic. Once more it becomes apparent, on that submission, that this
case is not about jurisdiction. It is about whether the University
has a good defence to the claim.
[57] I might add that if courts were precluded from
considering claims that are bad in law there would be no scope for
the recognition
of new rights and the development of the law. The
very progress of the law is dependent upon courts having the power to
consider
claims that have not been encountered before. A court cannot
shy away from exercising its power to consider a claim on account of
the fact that it considers that the recognition of the claim might
have undesirable consequences. Its proper course in a case like
that
is to exercise its power to consider the claim but to decline to
recognise the rights that are asserted and to dismiss the
claim as
being bad in law. That is what occurred in
Lillicrap
.
The Second Unsound Proposition:
A
high court that has jurisdiction to consider a claim for the
enforcement of a right may thwart the assertion of that right by
declining to exercise its jurisdiction.
[58] This was the basis upon which the court below
upheld the objection in this case. It is clear from the particulars
of claim,
when compared with the factual allegations made in the
special plea, and even more so when those allegations are read in
conjunction
with the award of the arbitrator (which was attached to
the plea), that the claim that was before the high court, and the
claim
that was pursued before the CCMA, are not the same claims
(contrary to what is alleged in the special plea). Indeed, that was
freely
acknowledged by counsel (which in itself undermined the
argument that she initially presented as I outlined it above). The
claim
that is now before us was not even capable of being pursued and
ruled upon by an arbitrator of the CCMA, because it is not for the
enforcement of an LRA right.
[59] The claim that was pursued before the CCMA was a
claim to enforce the right of an employee not to be dismissed
unfairly (what
I have called an LRA right) which is enforceable only
in a Labour Forum. The claim in this case asserts for enforcement a
right
emanating from the common law to exact performance of a
contract. It is plain that the high courts have the power to consider
claims
for the enforcement of employment contracts (as does the
Labour Court).
[60] The court below quoted a passage from the judgment
of Ngcobo J, writing for the majority in
Chirwa
,
30
which it construed to mean that Makhanya was put to an election as to
which claim to enforce, and that his election to pursue one
claim
(the claim in the CCMA) meant that as a matter of âjudicial policyâ
the court could stop him from pursuing the other
claim by simply
declining to exercise its jurisdiction to consider the claim. Taken
to its logical conclusion the approach that
the court below adopted
would mean that the claim would not be capable of being adjudicated
upon at all by any court, not even
to be dismissed on its merits. It
is to be left wandering, unresolved, in some sort of limbo, for want
of a court to at least consider
it, if only thereafter to dismiss it.
[61] As I pointed out earlier, it is true that a
litigant who has a single claim that is enforceable in two courts
that have concurrent
jurisdiction must necessarily make an election
as to which court to use. In that respect the law specifically allows
for âforum
shoppingâ by allowing the litigant that choice. But it
is altogether different when a litigant has two distinct claims, one
of
which may only be enforced in one court, and the other of which
may be enforced in another court, which is how the court below
applied it in this case.
31
[62] The approach taken by the court below has the
effect of denying to Makhanya, as a matter of âjudicial policyâ,
the ability
to pursue the present claim at all, thereby thwarting the
assertion of the right upon which the claim is founded. That cannot
be
correct, because âjudicial policyâ to that effect would be
unconstitutional.
[63] It is not unknown in history for authorities to
attempt to subvert the assertion of rights by the expedient of
denying the
holder a forum in which to assert them. For a right
without a forum in which to enforce it might just as well not exist
at all.
The drafters of the Constitution were clearly alive to the
stratagem of surreptitiously negating rights in that way, which it
outlawed
by guaranteeing to every person a forum in which to
prosecute any legal claim and not only some of them.
32
That guarantee is fundamental to the preservation of rights.
[64] Even if the court below meant only that the claim
could not be asserted in the high court but may be pursued in the
Labour
Court under its concurrent jurisdiction (which is not what the
court had in mind) that would also be unconstitutional. The law has
designated the high court as a forum for pursuit of the claim, and a
litigant may not be denied access to a court that the law
allows.
[65] Clearly a court may not thwart the assertion of a
right by denying access to a court in which to do so. It would be no
answer
to say that it really will not matter because the claimant has
another right that is just as good. If the claimant asserts two
rights â and it is not in issue in this case that he does â then
both must have a forum in which to be asserted. That is what
the
Constitution guarantees. To the extent that the objection was upheld
on that basis the order cannot stand.
The Third Unsound Proposition:
The
claim that is before the court is not what it purports to be, but is
instead a claim for enforcement of an LRA right.
[66] That proposition was not advanced in this case,
but it is the foundation for a defence that has been mounted,
academically,
in support of the decision in
Chirwa
.
It is convenient to deal with it now, before turning to
Chirwa.
The defence has been mounted by Halton
Cheadle in an article that is shortly to appear in the Industrial Law
Journal.
33
[67] Cheadle points out that the majority in
Chirwa
did two things, one of which was to âdecide as a matter of
constitutional interpretation to limit the scope of the right to
administrative action so as to exclude labour practicesâ (its
finding that the conduct of Transnet was not âadministrative
actionâ).
[68] I am aware that that finding has evoked some
controversy but that finding is not my present concern. Cheadle
advances persuasive
grounds for concluding that it was correct. In
that respect the author lays heavy store on what he considers to be a
policy encapsulated
in the LRA that grievances that an employee in
the public sector might have arising from dismissal should be the
subject only of
claims under the LRA. That is also the constant theme
of the majority in
Chirwa
and the following is an example of what was said in that regard:
34
âConsistently with this objective the LRA brings all employees,
whether employed in the public sector or private sector under
it,
except those specifically excluded. The powers given to the Labour
Court under s 158(1)(h) to review the executive or
administrative acts of the State as an employer give effect to the
intention to bring public sector employees under one comprehensive
framework of law governing all employees. So too is the repeal of
legislation such as the Public Service
Labour Relations Act and
the
Education
Labour Relations Act. One
of the manifest objects of the
LRA is therefore to subject all employees, whether in the public
sector or the private sector, to
its provisions, except those who are
specifically excluded from its operation.â
[69] If that is indeed the purpose of the legislation it
would justify a construction of the legislation such as to deny to
public
sector employees any rights other than those provided for in
the LRA, which is the construction that the majority placed upon it.
That construction, with its consequence that a claim arising outside
the LRA is bad in law, will give full effect to that legislative
purpose. On that finding alone any further claim that might yet be
made along similar lines (whether in the high court or in the
Labour
Court) will be doomed to failure on that ground and the claimant will
be confined to pursuing his or her LRA rights only.
But it begs the
question why the legislature should have denied a claimant his or her
ordinary right to approach a high court to
consider such a claim, if
only to have it dismissed because the claim is bad. It would be most
odd if the legislature, having resolved
to deny employees rights
arising outside the LRA, should also bar the courts from declaring
that an employee has no such rights.
[70] The explanation advanced by Cheadle for the
jurisdictional finding arises from what he says the majority did in
that regard.
He says that the majority âcharacterised the decision
to terminate Ms Chirwaâs employment as a labour practice rather
than
as administrative action.â What he says, as I understand it,
is that the majority regarded the claim that was before it as a claim
for the enforcement of LRA rights (enforceable only in a Labour
Forum) and not as a claim to enforce a constitutional right.
[71] Before turning to that explanation there are two
observations that I need to make. The first is that the claim that is
before
a court is a matter of fact. When a claimant says that the
claim arises from the infringement of the common law right to enforce
a contract, then that is the claim, as a fact, and the court must
deal with it accordingly. When a claimant says that the claim
is to
enforce a right that is created by the LRA, then that is the claim
that the court has before it, as a fact. When he or she
says that the
claim is to enforce a right derived from the Constitution then, as a
fact, that is the claim. That the claim might
be a bad claim is
beside the point.
[72] The second observation is that a claim, which
exists as a fact, is not capable of being converted into a claim of a
different
kind by the mere use of language. Yet that is often what is
sought to be done under the guise of what is called âcharacterisingâ
the claim. Where that word is used to mean âdescribing the
distinctive character ofâ the claim that is before the court,
35
as a fact, then its use is unexceptionable. But when it is used to
describe an alchemical process that purports to convert the
claim
into a claim of another kind then the word is abused. What then
occurs, in truth, is not that the claim is converted, but
only that
the claimant is denied the right to assert it.
[73] I understand Cheadle to say that that was what the
court purported to do in
Chirwa
.
If it had indeed done so then that would not have been permissible,
because that would have denied Ms Chirwa the right to assert
the
claim that she had brought. But I think it is clear that the
statement that the majority did so is factually not correct.
[74] I had occasion in
Makambi v
MEC for Education, Eastern Cape
36
to consider the possibility that the majority
might have done that (there are statements in the judgment of
Skweyiya J that appear
to bear that out but they seem to me to be
inconsistent with other statements in the judgment
37
)
and in that regard I said the following:
38
âOne thing is clear beyond a shadow of doubt ⦠which is that the
court construed the claim as being one for the enforcement
of the
claimantâs constitutional right to just administrative action
(which is what the claim purported to be). For had the claim
been
construed to be anything else the court would not have been capable
of finding (as both the majority and the minority found)
that the
dismissal of the appellant did not constitute administrative action â
the question whether the dismissal constituted
administrative action
could simply not have arisen.â
[75] On numerous occasions in both majority judgments it
is stated that Ms Chirwaâs claim was for enforcement of her
constitutional
right. That is how this court understood the claim.
There could also have been no doubt in the mind of the majority that
that
was the claim. And the fact alone that the court found itself
able to find that the conduct in question was not âadministrative
actionâ demonstrates ineluctably that the court did not consider
the claim that was before it to be a claim for the enforcement
of LRA
rights. The contrary would suggest that the majority regarded the
claim as being one for the enforcement of LRA rights when
assessing
the jurisdictional issue, but to be a constitutional claim when
assessing the merits, which would be absurd.
THE DECISION IN
CHIRWA
[76] In
Makambi
I
commented on the difficulty I had deconstructing the language of the
majority in
Chirwa
so
as to discover why the high court was said to have had no
jurisdiction. I do not intend pursuing that line of enquiry. It
is
sufficient to say that there are hints in the judgments of the
majority of all the three propositions that I dealt with above
but
none ever quite blossomed.
[77] If the ratio of its decision to dismiss the claim
was that the high court lacked jurisdiction to consider it then it
applies
as much in this case, because on that issue the two are
indistinguishable notwithstanding the differences in their facts.
[78] In this case the employment of Makhanya terminated,
as in
Chirwa
. As in
Chirwa
that gave rise
to a potential claim to enforce LRA rights (a claim for the
enforcement of that right was in fact pursued to its
conclusion in
this case but that distinction is not relevant). And as in
Chirwa
the claim that is now before us is a claim that asserts a separate
right that is said to have been infringed. The right that is
asserted
in this case is an established right, unlike the right that was
asserted in
Chirwa
,
but that is immaterial, because as I have said, jurisdiction is not
dependent upon whether the claim is good or bad.
[79] Both in
Chirwa
and in this case the right that was (and is now) asserted, is not an
LRA right, but is one that falls within the ordinary power
of the
high court to enforce. In this case it falls within the ordinary
power that the high courts have to enforce contractual
rights
(expressly preserved by the BCEA). And in
Chirwa
it fell within the ordinary power that the high courts have to
enforce constitutional rights (expressly conferred by the
Constitution
and preserved in s 157(2) of the LRA).
[80] Thus in all material respects the present claim
corresponds with the claim in
Chirwa
notwithstanding the factual distinctions. If the finding on the
jurisdictional issue in
Chirwa
was the ratio for the order that was made then we are bound to apply
it in this case and to dismiss the claim on that ground as
the court
below did. (That question did not arise in
Makambi
because the claim in that case fell to be dismissed in any event.)
[81] But what needs to be borne in mind, as Cameron JA
reminds us in
True Motives
,
39
is that what binds a lower court is only the ratio of the decision of
a higher court and not what might have been said en passant
(though
views of a higher court that are expressed in that way are always
instructive). My colleague dealt comprehensively in that
case with
the explanation that Schreiner JA gave in
Pretoria
City Council v Levinson
40
of what constitutes the ratio of a case. Schreiner JA subsequently
repeated that, perhaps more succinctly, in
Fellner
v Minister of the Interior
,
41
when he said the following:
âThe decision or judgment, in the sense of the Courtâs order, by
itself only operates of course, between the parties themselves:
it
can only state law in so far as it discloses a ruleâ.
[82] I mentioned earlier that the most striking feature
of
Chirwa
is that its
two findings, in so far as they purport to express the rule upon
which the order was founded, are mutually destructive.
For the court
was sitting on appeal in that case from a decision of the high court
and its power on appeal necessarily replicated
that of the high
court. There is nothing in
Chirwa
to suggest that the court invoked anything but its powers on appeal
in reaching its conclusions.
[83] The high court, once having found that it had no
jurisdiction, as the majority found, would not have been capable, by
its own
decision, of making any further orders in the matter. The
only course open to it would have been to dismiss the claim, on the
ground
that it lacked the power to make any further orders. It would
not have been capable of deciding authoritatively that Ms Chirwa had
no cause of action and dismissing her claim on that ground. Yet the
majority (excluding Skweyiya J) went on to make a finding on
that
issue, which purported to have been at least one of the grounds on
which the claim was dismissed.
[84] It follows that the ratio for its decision to
dismiss the claim is to be found in one or other of those findings
but it cannot
be found in both. The difficulty with which we are
confronted is to discover which of them it was. Because we are bound
by whichever
one provides the ratio of the decision, and bearing in
mind that this case is not materially distinguishable on the
jurisdictional
issue, it would be a pity to dispose of it on the
wrong ground.
[85] Ordinarily the ratio of a decision will appear from
the express language of the judgment. In this case there is a
difficulty.
[86] Certainly as far as Skweyiya J was concerned, the
ratio for his decision to dismiss the claim was that the high court
lacked
jurisdiction, because having found that, he left the matter
there. But the remainder of the majority went on to make the further
finding I have referred to. Its reasons for doing so are reflected in
the judgment of Ngcobo J (with whom the remainder of the
majority
concurred). That judgment supplemented the reasons that had been
given by Skweyiya J for his jurisdictional finding, and
in addition
set out the reasons for the conclusion on the merits.
[87] The learned judge ended by stating the conclusions
that he reached on each of those issues,
42
but failed to say which of them constituted the reason for dismissing
the claim. As I have already pointed out, it might have
been either
one or the other, but it could not have been both. Thus we are left
with no express statement by the majority of which
of those was the
ratio for its order dismissing the claim.
[88] While the ratio of a decision is a rule of law, the
rule itself exists as a fact, and is thus capable of being discovered
in
either of two ways. It might be found in what a court says it is
expressly. But where that does not occur then, as with all facts,
it
is capable of being discovered circumstantially by inference. As
Schreiner JA explained it in
Fellner
:
43
âWhere, however, even when reasons [for the order] are given, it
is not possible to discover a ratio decidendi from them, it
becomes
necessary to resort to the facts found to be material and to the
order, as if no reasons had been given, so as to find
what must have
been treated by the Court as the law, if the order was to be
justified.â
[89] I find myself compelled to approach the matter in
that way and to determine, as if no reasons had been given, with
reference
only to the material facts and the order that was made,
what must have been treated by the court as the law if the order was
to
be justified. Fortunately in this case I need confine myself to
only two possibilities.
[90] I have already said that all arguments in support
of jurisdictional objections of the present kind, when properly
analysed,
ultimately come down to one or other of the three unsound
propositions I have mentioned. I have also pointed out that each of
them
is fatally defective. One because it offends an immutable rule
of logic. Another because it is in conflict with the Constitution.
And I need not concern myself with the third because if only one
thing is clear it is that that was not the basis of its finding.
[91] I can think of no other possible explanation for
why the high court might not have had jurisdiction in
Chirwa.
Moreover, as I have pointed out, this case is
not materially distinguishable. Thus if a high court has jurisdiction
in this case
then it must equally have had jurisdiction in
Chirwa
(and vice versa) and it is perfectly clear that the high court has
jurisdiction in this case. That was held in
Fedlife
and the high courtsâ ordinary powers in such cases are also
expressly preserved by the BCEA.
[92] It seems to me in those circumstances that that
could not have been the ratio of the majority (but for Skweyiya J) in
Chirwa
because on the
material before the court its order cannot be justified on that
ground. There being only one other possibility that
presents itself I
must conclude that the claim was dismissed because the termination of
Mrs Chirwaâs employment was found not
to have been administrative
action with the consequence that the claim was bad in law.
[93] Once more, so it seems to me,
Chirwa,
like all the cases that preceded it, was not about jurisdiction at
all. It was about whether there was a good cause of action.
In my
view the least said about jurisdiction in such cases the better
because, once that red-herring is out of the way, courts
will be
better placed to focus on the substantive issue that arises in such
cases, which is whether, and if so in what circumstances,
employees
might or might not have rights that arise outside the LRA.
CONCLUSIONS
[94] To summarise, I am driven to conclude that the
ratio for the order that was made in
Chirwa
(both of the minority and the majority, but for Skweyiya J) was
that the termination of an employment contract in the circumstances
in which it occurred in that case, does not constitute
âadministrative actionâ, and for that reason the claim was bad in
law
and it was dismissed on that ground. The further views of the
majority that the high court had no jurisdiction to consider the
claim was not the ratio for the order that it made and what was said
by various members of the court in that regard is thus not
binding
upon us. In those circumstances we are free to dispose of this appeal
on conventional principles.
[95] In this case the claim is for the enforcement of
the common law right of a contracting party to exact performance of
the contract.
We know this because that is what it says in the
particulars of claim. Whether the claim is a good one or a bad one is
immaterial.
Nor may a court thwart the pursuit of the claim by
denying access to a forum that has been provided by law. A claim of
that kind
clearly falls within the ordinary power of the high court
that is derived from the Constitution and the jurisdictional
objection
should have failed. The appeal must accordingly succeed.
THE SPECIAL DEFENCE TO THE CLAIM IN THIS CASE
[96] Counsel for Makhanya submitted that if that were to
be our finding we should remit the matter to the high court to decide
the
remaining issues, including the defence raised in the other
special plea, because only the jurisdictional issue is before us.
[97] While the special defence might indeed not strictly
be before us I think it would be fruitless to remit the matter for a
decision
on that point. The court below has already expressed itself,
albeit tentatively, on that issue (which was against Makhanya) and
if
it were to confirm that view the matter is destined to return because
I think that view is not correct. Moreover, the issues
that are
raised by that defence were interwoven in the submissions that were
advanced before us and I think it would be wasteful
for them to be
argued again.
[98] I think it is clear that the defence of res
judicata, in the full sense of that term,
44
cannot succeed for at least one reason. It is clear that the claim
that is now before us, and the claim that was pursued in the
CCMA,
were not the same claims, as I observed earlier in this judgment.
[99] For that reason counsel for the University confined
herself instead to a narrower meaning in which the term has also been
used
â at times also called âissue estoppelâ.
45
She submitted that the question whether Makhanya had an employment
contract â an essential element of the present claim and also
the
claim that was pursued in the CCMA â had been finally pronounced
upon by the arbitrator and could not be pursued a second
time.
[100] I have considerable doubt that a finding by an
arbitrator of the CCMA can prevent a litigant from raising the issue
once more
in the high court but I need not decide that question. It
is apparent from the award of the arbitrator that no definitive
finding
was made on that issue. It was found only that the agreement
had not been established and not that there was no such agreement.
On
that ground alone Makhanya cannot be prevented from submitting the
question to the high court for decision. No doubt the findings
of the
arbitrator will be given serious consideration when deciding whether
to persist in the action but that is another matter.
[101] The following orders are made:
1 The appeal is upheld with costs. The order of the
court below is set aside and the following orders are substituted:
â
(a) Both special pleas are dismissed with costs.
(b) The action is postponed sine die for disposal of
the remaining issuesâ.
2 The matter is remitted to the high court for disposal
of the remaining issues in the action.
_________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES
For Appellant: R Pillemer
Instructed by:
Henwood Britter & Caney, Durban
Lovius Block Attorneys, Bloemfontein
For Respondent: L R Naidoo
Instructed by:
Garlicke & Bousfield Inc, Durban
Claude Reid Attorneys, Bloemfontein
1
2002 (1) SA 49
(SCA).
2
The argument was dealt with in paras 23-27.
3
2008 (4) SA 367
(CC);
[2007] ZACC 23.
4
[2009] ZASCA 4
para 100.
5
Para 102.
6
Para 101.
7
Section 185.
8
Section 33(1) of the Bill of Rights: âEveryone has the right to
administrative action that is lawful, reasonable and procedurally
fair.â The Interim Constitution provided a right in comparable
terms in s 24.
9
Created by s 112 of the LRA.
10
So far as disputes fall within the jurisdiction of the CCMA the
exclusivity of its powers is implicit in the procedures for
resolution of such disputes. As for the Labour Court, s 157(1) of
the LRA provides: ââ¦[T]he Labour Court has exclusive
jurisdiction in respect of all matters that elsewhere in terms of
this Act ⦠are to be determined by the Labour Court.â (see
Fedlife
, above, on the meaning of that subsection, approved
in
Fredericks v MEC for Education and Training, Eastern Cape
[2001] ZACC 6
;
2002 (2) SA 693
(CC)).
11
Section 169(b) of the Constitution. The section assigns judicial
authority to the high courts in the following terms:
âA High Court may decide â
(a) any constitutional matter except a
matter that:
(i) only
the Constitutional Court may decide; or
(ii) is
assigned by an Act of Parliament to another court of a status
similar to a High Court; and
(b) any other matter not assigned to
another court by an Act of Parliament.
12
Section 77(3)
of the
Basic Conditions of Employment Act: âThe
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment
â¦â
13
Section 169(a)(ii)
quoted above.
14
Section 157(2)
of the LRA: âThe Labour Court has concurrent
jurisdiction with the High Court in respect of any alleged or
threatened violation
of any fundamental right entrenched in Chapter
2 of the [Constitution] and arising from ⦠employment and from
labour relations.â
15
Paras 122-123.
16
Paras 121 and 122.
17
Even the deletion of the words âconcurrent ⦠with the High
Courtâ would not alter the meaning of subsection (2) when properly
construed in the context of the section as a whole.
18
Section 169 of the Constitution quoted above. Other courts have such
powers as may be assigned to them by legislation.
19
See Ngcobo J in
Chirwa
paras 92 and 95.
20
A true jurisdictional challenge was raised, but almost as an
afterthought. The real issue in that case was whether there was
a
good cause of action. Thus there were two distinct issues in that
case (dealt with in the judgment in the reverse order of
their
logical sequence). The first was whether the high court had the
power to consider a claim for breach of contract (which
was the
claim that was before it). For that stage of the enquiry the
question whether the claim was good in law was irrelevant.
The court
held that the high court did have jurisdiction to consider such a
claim (paras 23-27). Once that had been decided it
was open to the
court to consider the next question (which would ordinarily have
been raised on exception to the particulars
of claim had the case
been properly pleaded), which was whether the claim was good in law.
It found that the claim was indeed
good in law (paras 8-22).
21
[2005] 26 ILJ 1957 (SCA).
22
2007 (5) SA 450
(SCA),
[2007] ZASCA 79.
23
[2001] ZACC 6
;
2002 (2) SA 693
(CC).
24
I pointed out above that one of the matters dealt with in
Fedlife
was a true jurisdictional challenge but that was raised almost as an
afterthought and was peripheral to the principal issue in
that case.
25
LRA rights are enforceable sometimes in the CCMA, and sometimes in
the Labour Court. For convenience I have assumed that the
particular claim is one that falls under the jurisdiction of the
Labour Court and not the CCMA.
26
1985 (1) SA 475 (A).
27
At 499D-E.
28
See 500F-501H.
29
Para 155.
30
Para 85: âOrdinarily and as a matter of judicial
policy, even if the High Court had concurrent jurisdiction with the
Labour
Court in this matter, it should be impermissible for a party
to initiate the process in the CCMA alleging one cause of action,
namely unfair labour practice, and halfway through that process
allege another cause of action and initiate proceedings in the
High
Court. It seems to me that where two courts have concurrent
jurisdiction, and a party initiates proceedings in one system
alleging a particular cause of action, the party is bound to
complete the process initiated under the system that she or he has
elected. Concurrent jurisdiction means that a party must make an
election before initiating proceedings. A party should not be
allowed to change his or her cause of action mid-stream and then
switch from one court system to another. In effect the applicant
is
inviting us to countenance such a practice. It is an invitation
which should in my view be firmly rejected.â
31
The passage I have referred to fails to distinguish those two
distinct situations and treats them, incorrectly, as if they are
interchangeable.
32
Section 34 accords to every person the right to have any dispute
that can be resolved by the application of law decided in a
fair
public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.
33
Halton Cheadle âDeconstructing Chirwa v Transnetâ [2009] 30
ILJ
741. I am grateful to the author for providing me with a proof
of the article.
34
Para 102.
35
Concise Oxford Dictionary
.
36
2008 (5) SA 449
(SCA),
[2008] ZASCA 61.
37
For example, compare para 18 with paras 19, 24 , 46 and 55.
38
Para 33.
39
See para 7 above.
40
1949 (3) SA 305
(A).
41
1954 (4) SA 523
(A) at 542D-E.
42
Paras 150 and 151.
43
At 542F-G.
44
Lawsa ed WA Joubert 2ed Vol 9 paras 623-646 for a discussion of that
defence.
45
Lawsa, above, paras 647-650.