Kriel v Legal Aid Board and Others (138/08) [2009] ZASCA 76; 2010 (2) SA 282 (SCA) ; [2009] 9 BLLR 854 (SCA); [2009] 4 All SA 314 (SCA); (2009) 30 ILJ 1735 (SCA) (1 June 2009)

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[2009] ZASCA 76
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Kriel v Legal Aid Board and Others (138/08) [2009] ZASCA 76; 2010 (2) SA 282 (SCA) ; [2009] 9 BLLR 854 (SCA); [2009] 4 All SA 314 (SCA); (2009) 30 ILJ 1735 (SCA) (1 June 2009)

Links to summary

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No 138/08
In the matter
between:
JAN-PAUL
KRIEL Appellant
and
THE
LEGAL AID BOARD First Respondent
J
K M MOSIME NO Second Respondent
P
HUNDERMARK NO Third Respondent
W
LAMBLEY
Fourth Respondent
THE
LAW SOCIETY OF THE
NORTHERN
PROVINCES Fifth Respondent
Neutral
citation:
J
P Kriel v The Legal Aid Board
(138/08)
[2009] ZASCA 76
(1 June 2009)
Coram
:
Mpati
P, Cachalia, Mhlantla JJA, Leach and Bosielo AJJA
Heard
: 27
February 2009
Delivered:
1
June 2009
Summary:
Unlawful
dismissal ─ application for review of dismissal under an employment
contract correctly refused as dismissal not amounting
to
administrative action.
ORDER
____________________________________________________________
On appeal
from:
High
Court, Pretoria (Seriti J sitting as a court of first instance).
The appeal is
dismissed with costs.
JUDGMENT
___________________________________________________________
MHLANTLA JA
et LEACH AJA (Mpati P, Cachalia JA and Bosielo
AJA
concurring):
[1] This is an
appeal against a judgment of the High Court, Pretoria (Seriti J)
dismissing the appellant's review application on
the grounds that the
first respondent’s decision to terminate the appellant’s
employment following a disciplinary proceeding
did not amount to
administrative action and that the high court did not have
jurisdiction to entertain the application. The appeal
is with the
leave of this court.
[2] Although the
court below determined that it lacked the necessary jurisdiction to
hear the matter, in our view that was not the
real issue that fell to
be decided. Relying on a number of alleged irregularities that we
shall detail in due course, the appellant
relied upon the Promotion
of Administrative Justice Act 3 of 2000 (‘PAJA’) to assert his
right to fair administrative action
by bringing review proceedings
under Uniform rule 53 for an order setting aside his dismissal. But
the jurisdiction of the high
court to hear reviews is unquestionable,
and the true issue for decision in our view is not whether the high
court had jurisdiction
to determine the appellant’s application for
a review but whether the dismissal of the appellant constituted
‘administrative
action’ as envisaged by PAJA. In order to
determine that issue, we turn to the relevant facts.
[3] The
appellant, an attorney, was employed by the first respondent on 1
August 1999. As at July 2002, he was employed as the head
of the
Pretoria Legal Justice Centre and as the principal attorney was
responsible for the supervision of 13 candidate attorneys.
He was
dismissed on 9 September 2004 following a disciplinary enquiry. His
problems commenced during July 2002 when Ms Flavia Isola
(Ms Isola),
who was appointed to act as Justice Centre Executive, moved into the
Pretoria offices where he was based. According
to the appellant, the
officials of the first respondent, including Ms Isola, had demanded
that he and his candidate attorneys sign
new service contracts. They
refused to do so and, instead of referring the dispute to senior
personnel of the first respondent,
approached Dyasons Attorneys for
legal advice and assistance. The appellant accused Ms Isola of
placing undue pressure on the candidate
attorneys to sign the
contracts, which in effect, would amount to a cession of their
contracts to her.
[4] Ms Isola
called a staff meeting on 3 September 2002 scheduled for 07h30. By
08h15, she had not arrived and the appellant, who
had waited for her
with other staff members, decided to leave for another appointment.
The meeting proceeded in his absence. At
some stage he failed to sign
the attendance register, a system which had been introduced by him.
According to the appellant, these
were isolated incidents. His
failure to attend the meeting and to sign the attendance register
formed the basis of the first two
charges of misconduct that Ms Isola
initiated against him.
[5] While these
charges against the appellant were pending the appellant obtained
information that Ms Isola had been a principal
of ten candidate
attorneys at the first respondent’s Benoni office and had abandoned
them to take up employment at the first
respondent’s Pretoria
office. He conveyed this information to his attorneys who addressed a
letter to the Law Society of the
Northern Provinces to the effect
that by abandoning the candidate attorneys she had contravened
section 6 of the Attorneys Act
53 of 1979. The Law Society never
responded to the letter. Ms Isola disputed these allegations and
caused further charges to be
instituted against the appellant in
respect of this complaint against her.
[6] During
December 2002 the appellant was suspended pending the institution of
a disciplinary enquiry. The enquiry commenced on
25 March 2003 and
the second respondent, a labour consultant, was appointed as
chairperson. His letter of authority to act as such
was issued on 30
April 2003 by the CEO. At the end of the enquiry, the appellant was
found guilty of misconduct. The second respondent
recommended that
the appellant be dismissed. A month later he retracted his
recommendation and replaced it with a sanction of dismissal.
The
appellant noted an appeal against both the recommendation and
sanction. The internal appeal, which was heard by the third
respondent, was dismissed. The fourth respondent notified the
appellant of his dismissal in writing on 9 September 2004.
[7] The
appellant thereafter launched review proceedings in the high court
where he, inter alia, sought an order reviewing, correcting
and
setting aside the decisions of the second and fourth respondents
dismissing him from the employ of the first respondent. At
the
hearing of the application a point of law relating to the court’s
jurisdiction to hear the matter was raised by the first
respondent.
The learned Judge was requested to decide that issue first.
[8] The court
below relied on this court’s judgment in
Transnet
Ltd and others v Chirwa
1
which it incorrectly construed as having found that a dismissed
employee of an organ of State could not seek a remedy in terms
of
PAJA but ought to seek relief in terms of the Labour Relations Act 66
of 1995 (LRA). Relying on
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
2
where it was held that the CCMA arbitration proceedings did not
constitute administrative action, the judge held that the CCMA

proceedings had the same attributes as a disciplinary enquiry. He
concluded that the disciplinary hearing and dismissal of the

appellant did not constitute administrative action and that the
Labour Court had exclusive jurisdiction to deal with the matter.
He
accordingly dismissed the application.
[9] Those two
findings are inconsistent. If the court below had no jurisdiction to
consider the claim then that ought to have been
the end of the matter
and by its own finding on that issue it had no power to rule on the
merits. This court very recently said
that the jurisdictional finding
in
Chirwa
was not the ratio for its order.
3
Clearly the high court had jurisdiction to consider the claim, and as
we said earlier, the real issue is whether the dismissal
constituted
administrative action.
[10] In this
court the appellant sought an order setting aside the finding of the
court below. In addition he sought an order setting
aside the
findings of the disciplinary and appeal hearings and an order for his
reinstatement.
[11] It was
incumbent upon the appellant to clearly set out in his founding
papers the cause of action upon which he relied. Unfortunately,
he
did not do so. He, inter alia, stated that his application was
brought in terms of Uniform rule 53 read with the provisions
of PAJA;
he relied upon the provisions of the
Protected Disclosures Act 26 of
2000
and alleged that the report about Ms Isola's conduct amounted to
a protected disclosure in terms of the Act. He also alleged that
his
dismissal and the disciplinary process were unfair because the second
respondent did not have the requisite authority to act
as chairperson
of the enquiry. He further relied on contractual rights, the common
law, the Constitution and upon the provisions
of eight other
statutes. He however failed to set out the specific constitutional
rights which had allegedly been violated, nor
did he set out the
facts supporting such a conclusion. However, essentially his cause of
action is that:
(a) His
dismissal was unlawful and thus void. He was thus entitled to relief
in terms of PAJA;
(b) His
dismissal was unfair and unlawful as, due to an improper delegation
of authority, the chairperson of the disciplinary
enquiry was not
entitled to act as such; and
(c) His
dismissal was unlawful and unfair as his report to the Law Society
had been protected under the
Protected Disclosures Act.
>
[12] It is
common cause that the first respondent is an organ of State. It is
trite that the appellant can only be entitled to
relief in terms of
PAJA if his dismissal amounted to administrative action. Counsel for
the appellant contended that the dismissal
of the appellant was
unlawful and void. It was thus contended on behalf of the appellant
that the first respondent derived its
power to dismiss from the Legal
Aid Act 22 of 1969; that the cause of action was in terms of the
contract of employment and the
statute and that the dismissal under
the Legal Aid Act therefore constituted administrative action.
[13] This
argument is without merit. The question whether an unfair dismissal
in the public sector amounts to administrative action
has been
settled by the Constitutional Court in
Chirwa
v Transnet Ltd
and
others.
4
The
Constitutional Court held that public servants now enjoy the same
protection afforded employees in the private sector under
the LRA.
The court further held that a public service employee could not have
two causes of action, one under the LRA and the other
under PAJA, and
that the decision of an organ of state to dismiss an employee is not
an administrative act but involves the exercise
of a contractual
power.
[14] Writing for
the majority in
Chirwa
Ngcobo J held:
'The
subject-matter of the power involved here is the termination of a
contract of employment for poor work performance. The source
of the
power is the employment contract between the applicant and Transnet.
The nature of the power involved here is therefore
contractual. The
fact that Transnet is a creature of statute does not detract from the
fact that in terminating the applicant's
contract of employment, it
was exercising its contractual power. It does not involve the
implementation of legislation which constitutes
administrative
action. The conduct of Transnet in terminating the employment
contract does not, in my view, constitute administration.
It is more
concerned with labour and employment relations. The mere fact that
Transnet is an organ of State which exercises public
power does not
transform its conduct in terminating the applicant's employment
contract into administrative action. Section 33
is not concerned with
every act of administration performed by an organ of State. It
follows therefore that the conduct of Transnet
did not constitute
administrative action under s 33.
Support
for the view that the termination of the employment of a public
sector employee does not constitute administrative action
under
section 33 can be found in the structure of our Constitution. The
Constitution draws a clear distinction between administrative
action
on the one hand and employment and labour relations on the other. It
recognises that employment and labour relations and
administrative
action are two different areas of law . . .
As
pointed out earlier, the line of cases which hold that the power to
dismiss amounts to administrative action rely on
Zenzile.
5
This case and its progeny must be understood in the light of our
history. Historically, recourse was had to administrative law
in
order to protect employees who did not enjoy the protection that
private sector employees enjoyed. Since the advent of the new

constitutional order, all that has changed. Section 23 of the
Constitution guarantees to every employee, including public sector

employees, the right to fair labour practices. The LRA, the
Employment Equity Act, 1998
, and the
Basic Conditions of Employment
Act, 1997
, have codified labour and employment rights. The purpose of
the LRA and the
Basic Conditions of Employment Act is
to give effect
to and regulate the fundamental right to fair labour practices
conferred by section 23 of the Constitution. Both
the LRA and the
Basic Conditions of Employment Act that
were enacted to give effect
to
section 23
, now govern the public sector employees, except those
who are specifically excluded from its provisions. Labour and
employment
rights such as the right to a fair hearing, substantive
fairness and remedies for non-compliance are now codified in the LRA.
It
is no longer necessary therefore to treat public sector employees
differently and subject them to the protection of administrative

law.'
6
[15]
The
decision in
Chirwa
led to this court, in circumstances not dissimilar to the present,
holding in
Transman
(Pty) Ltd v Dick and Another
7
that it could not review a termination of an employee’s employment
as it did not constitute administrative action. A similar

conclusion was reached in
Makambi
v MEC for Education, Eastern Cape.
8
[1
6]
Counsel for the appellant however argued that
Chirwa
was distinguishable from the present matter as the employee had there
based her claim solely upon the alleged unreasonableness
of her
dismissal and the provisions of the LRA whereas the appellant had not
relied solely on the unreasonableness of his dismissal
but also on
the law of contract as well as the improper delegation of authority
to the second respondent and the irregular and
unlawful actions and
decisions of the respondents.
[1
7]
This argument cannot be accepted. In
Chirwa
the appellant in fact relied on far more than the provisions of the
LRA and an allegation that her dismissal had been unreasonable
or
unfair. As was pertinently highlighted by Farlam JA in
Makambi
,
Mrs Chirwa had also contended that her dismissal constituted
administrative action under PAJA and s 33 of the Constitution; she

had further alleged that the person who had taken the decision which
she sought to impugn had been biased; she had complained that
she had
been prevented from obtaining assistance or representation; she had
alleged that there had been non-compliance with a material
procedure
prescribed by an empowering provision; and, finally, she had averred
that certain provisions of the LRA had been violated.
[1
8]
Mrs Chirwa’s claim was in many respects strikingly similar to
that in the present matter. There is therefore no reason for
the
principle expounded in
Chirwa
viz. that a dismissal from employment is not an administrative act
which can be reviewed, followed in both
Makambi
and
Transman
,
not to apply in the present case.
[19]
This conclusion in our view makes it unnecessary to decide the
remaining issues such as whether the appellant’s attempt
to report
Ms Isola to the Law Society was a protected disclosure under the
Protected Disclosures Act 26 of 2000
. The appellant’s allegation
that such report had been a protected disclosure was merely grist to
the mill in respect of his contention
that he had been unfairly
treated and that the decision to dismiss him had been taken in the
light of irrelevant considerations.
Indeed his argument is now that
as the Law Society had never received his complaint there had been no
disclosure, and that he should
therefore not have been found guilty
of disloyalty as he had not reported Ms Isola to the Law Society. But
even if the report was
protected, and even if it was impermissibly
taken into account against the appellant, that in itself did not give
rise to a right
of review. The fact remains that as the dismissal did
not constitute administrative action and its legality or otherwise
was not
something to be determined by way of review proceedings under
PAJA.
[2
0]
By a parity of reasoning, it is also unnecessary to decide whether
the second respondent lacked the authority to adjudicate
at the
disciplinary inquiry and whether there had been any impermissible
delegations of authority. The resolution of these issues
is
irrelevant to whether the decision to dismiss amounted to
administrative action which could be reviewed.
[21]
Of course this does not mean that the appellant was left without a
remedy as it was open to him to challenge the termination
of his
employment under the LRA. It may well have been permissible for him
to have brought a review of his dismissal in the Labour
Court under
s
158(1)(g)
of that Act which provides for a review of any decision
taken or act performed ‘by the State as employer, on such grounds
as
are permissible in law’. It was certainly open to him to contend
that the termination of his employment had constituted an unfair

dismissal as envisaged by s 185 and s 186 of the LRA. In particular,
if his employment had indeed been terminated as he was a
white
Afrikaner as he alleged had been the case, it would probably have
amounted to an automatically unfair dismissal under s 187(1)(f).

Similarly, if his report to the Law Society was protected under the
Protected Disclosures Act, to
dismiss him as a result would probably
also be automatically unfair under
s 187(1)(h).
By the same token,
many of the other allegations relied on by the appellant, if
accepted, even if not necessarily leading to a
finding that his
dismissal had been automatically unfair under
s 187
, could well
justify the conclusion that it was otherwise unfair under
s 188.
[2
2]
It is both unnecessary and undesirable for this court to comment on
what the outcome of such proceedings would have been had
they been
instituted, but the appellant clearly had remedies available to him
under the LRA which he could have brought in the
Labour Court. For
some reason the appellant decided not to follow that route but to
seek review proceedings in the high court which,
for the reasons
given, could not succeed.
[23]
Consequently, the court a quo correctly dismissed the application,
not on the basis that it lacked jurisdiction but as the
appellant’s
dismissal from employment was not an administrative act and he had
therefore failed to establish his cause of action.
Be that as it may,
the order dismissing the application cannot be disturbed.
[24] In the
result the appeal is dismissed with costs.
_______________
N Z MHLANTLA
JUDGE OF
APPEAL
___________________________
LE LEACH
ACTING JUDGE
OF APPEAL
Appearances:
For
Appellant Ms A van der Walt
Ms S van der
Walt
McLachlan &
Co Inc, Garsfontein, Pretoria
Naudes
Attorneys, Bloemfontein
For First to
Fourth
Respondents R
G Beaton
Stegmanns
Inc, Hatfield, Pretoria Claude Reid Inc,
Bloemfontein
1
2007 (2) SA 198
(SCA).
2
2008 (2) SA 24
(CC);
[2007] ZACC 22.
3
Makhanya
v University of Zululand
[2009] ZASCA 69.
4
2008
(4) SA 367
(CC);
[2007] ZACC 23.
5
Administrator,
Transvaal and others v Zenzile and others
1991
(1) SA 21
(A).
6
At
paras 142, 143 and 148.
7
[2009] ZASCA 38
at
[16]
- [19] and [23] - [27].
8
2008 (5) SA 449
(SCA);
[2008] ZASCA 61.