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[2019] ZALMPPHC 37
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South African Democratic Teachers Union v Department of Education, Limpopo Province (1956/2018) [2019] ZALMPPHC 37 (5 August 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 1956/2018
In the matter
between:
SOUTH AFRICAN
DEMOCRATIC
TEACHERS
UNION
: APPLICANT
And
DEPARTMENT OF
EDUCATION,
LIMPOPO PROVINCE
: RESPONDENT
JUDGMENT
SEMENYA J:
[1] On the 14 November
2014, the Head of Department of the respondent issued circular No.
121 of 2014 (the circular). The said circular
was intended to
regulate the appointment of educators who have previously resigned
from the public service as educators and who
had either re-entered
the profession or intend to do so in the future. The said circular
provides as follows:
“
1. The
Department of Education has noted that there are educators who
terminate their services before reaching the retirement age,
and
after a short period of absence, re-enter the teaching profession.
2. In the case of
re-appointments, consideration shall be given to the interests of the
Limpopo Provincial Education.
3. Secondly, other
applicants who comply with the prescribed requirements for
appointment, and young entrants to the teaching profession
shall be
given preference over persons who have already had the opportunity of
an extensive career in education.
4. Thirdly, if there
is no other young entrants to the teaching profession, the
re-appointment of an educator who had retired prematurely
should be
on contract not exceeding twelve (12) months.
5. Lastly, these
educators who had a break in service should not be appointed without
prior approval of the Head of Department…”
[2] Subsequent to the
coming into operation of this circular, Thlako M A (Thlako), one of
the educators who have previously resigned
from the teaching
profession, and has since been appointed again as an educator,
received a letter which informed him that his
permanent post has been
converted into a temporary one on the strength of the circular. The
applicant, a registered trade union
which represents educators,
launched this application on behalf of Thlako and other educators who
were affected by the circular.
It is imperative to quote the orders
sought in the notice of motion in view of the events that took place
after the launch of the
application as well as the nature of the
issues raised. The prayers are as follows:
“
3. Interdicting
the respondent from converting from permanent to temporary the
employment status of any educator who has been appointed
on a
permanent basis previously resigned from the public service
4. Interdicting the
respondent from discriminating against any educator who previously
resigned from the public service and who
applies for a post for
appointment as an educator whether on permanent or temporary basis.
5. Declaring as
unlawful, unconstitutional and discriminatory Departmental
Circular no. 121 of 2014 dated 14/11/2014.
6. Declaring the
conversion of the appointment status of Thlako M A and/ or any other
educator from permanent to temporary on the
basis of their previous
resignation from the public service to be unlawful and of no force
and effect.
7. Declaring that any
educator who has voluntarily resigned from the public service
qualifies for permanent appointment upon meeting
all requirements for
permanent appointment as an educator.
8. Directing the
respondent to restore the appointment of Thlako M A or any other
educator who was appointed on a permanent basis
and whose appointment
was converted to temporary for the reason of their previous
resignation to permanent as per their letters
of permanent
appointment.
9. Directing the
respondent to restore Thlako M A and any other educator affected by
the impugned action and whose services were
subsequent to the
impugned conversion terminated in its employment.
10. Directing the
respondent to pay the salaries of Thlako M A and any other educator
whose services were terminated owing to the
conversion of their
appointment from permanent to temporary for the period such
termination until restore to their permanent positions.
11. Directing that any
educator who previously voluntarily resigned and applied for and was
recommended for appointment permanent
be appointed in any such
educator post and to the school for which she or he was recommended
for any appointment.
12. Directing the
respondent to provide applicant’s Attorneys with a list details
of all educators who were not shortlisted
and/or were removed from a
shortlist owing to the fact of their previous resignation from public
service.
13. Directing the
respondent to provide applicant’s Attorneys with a list and the
details of all educators who were interviewed
and recommended for
permanent appointment but were disqualified owing to their previous
resignation.”
[3] On the 8 August 2018,
the respondent issued circular number 125 of 2018. The parties are in
agreement that this circular had
the effect of withdrawing circular
number 121 of 2014. Pursuant to the issue of circular 125 of 2018,
the applicant abandoned prayers
3, 4, 5 and 7 of the notice of motion
on the basis of mootness. During argument the applicant stated that
the remaining issues
between the parties are limited to the rights of
Thlako alone. This judgment will therefore be restricted to the
issues relating
to Thlako only.
[4] The applicant alleges
that the application is brought in terms of section 89 of the Basic
Conditions of Employment Act 75 of
1997 (BCEA) and section 38 (b) –
(e) of the Constitution of the Republic of South Africa, 1996.
Section 89 of the BCEA provides
that:
“
(1) A
registered trade union or registered employers’ organisation
may act in anyone or more of the following capacities in
any dispute
to which any of its members is a party:
(a) In its own
interest;
(b) on behalf of its
members;
(c) in the interest of
any of its members.
(2) A registered trade
union or a registered employers’ organisation is entitled to be
a party to any proceedings in terms
of this Act if one or more of its
members is a party to these proceedings.”
Thlako has deposed
to a supporting affidavit in which he states that he is an educator
and a member of the applicant. In response
to the preliminary issue
of the applicant’s lack of
locus
standi
raised by the respondent, the applicant argued that it was not
necessary for the applicant to attach Thlako’s membership
to
its founding papers in view of this supporting affidavit. I agree
with this contention, more so in that the respondent did not
furnish
any evidence that counter this averment. The respondent is therefore
entitled to act on behalf of Thlako on the strength
of subsection (1)
(b) of section 89 the BCEA above.
[5] The respondent
abandoned its initial preliminary issue of the applicant’s
failure to certify what appeared to be the class
action. This point
of law was raised on the basis of the applicant’s allegation
that it was acting on behalf of all educators
who have previously
resigned from the public service and seek to be employed again or are
already employed by the respondent. This
point of law was withdrawn
in view of the applicant’s submission that it will argue the
matter on behalf of Thlako only.
It is therefore not necessary to
address this issue in this judgment.
[6] The respondent
contended that the decision taken by the respondent amounts to an
administrative action and therefre falls within
the ambit of
Promotion of Administrative Justice Act 3 of 2000 (PAJA). The
respondent argued that the proper procedure that should
have been
followed was for the applicant to apply for review of this
administrative action in terms of the PAJA. The respondent
argued,
based on
Oudekraal
Estate (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA)
at
[26]-[28]
(Oudekraal)that the administrative action or decision remains valid
until it is set aside by a competent court. On this point,
the
applicant argued that the cause of action is determined by the
prayers sought in the notice of motion and not by what the respondent
wishes them to be. The applicant stated that Thlako is challenging
the constitutional validity of the decision taken by the respondent
in terms of the Constitution as well as its breach of the Employment
of Educators Act 76 of 1998 (EEA). The applicant submitted
that the
issues raised are not those that can be challenged in terms of PAJA.
[7] Counsel for the
applicant argued that Oudekraal did not impose an absolute obligation
on private citizens to take steps to strike
down an invalid
administrative action affecting them. He further argued that the
decision of the respondent amounts to legislative
decision, which is
the power that the respondent did not have. He submitted that even if
this court were to find that the impugned
circular amounts to
administrative action, it will not be precluded from declaring the
conduct invalid for inconsistency with the
Constitution. I do not
agree with counsel for the applicant that the respondent was
exercising legislative powers when it issued
circular number 121 of
2014. The circular sets out policy to be followed in the Department
of Education, Limpopo Province, whenever
an appointment of educator
is to be made. The development and implementation of Provincial
policy by the executive have been expressly
excluded from the
definition of administrative action in terms of section 1(bb) of
PAJA.
[8] Counsel for the
respondent contended that the applicant should have referred the
matter to the Labour Court and not to this
court. Counsel for the
applicant stated that the matter was initially referred to the
Education Labour Relations Council which
ruled that the dispute
referred to it by the applicant does not fall within its jurisdiction
on the basis that it was a contractual
claim. It was stated in that
ruling that Thlako has a choice of either accepting the repudiation
of the contract by the respondent
or suing for damages or rejecting
it and seeking specific performance. It appears to me that
Thlako opted for approaching
this Court for a different order instead
of challenging that decision of the Education Labour Relations
Council.
[9] The respondent
argued, on the basis of the judgment of the Western Cape Division of
the High Court in
Minister of Health v New Clicks SA (Pty) Ltd and
Others
2006 (1) BCLR 1
(CC) at 436 (New Clicks and Others)
that
the issues between the parties in this matter fall squarely within
the jurisdiction of the Labour Court. It was submitted
that the
applicant cannot rely on the Constitution or the common law in a case
where there is legislative provision specifically
promulgated to deal
with labour issues. In New Clicks and Others it was stated that:
“
In my view,
there is considerable force in the view expressed in NEPTOSA. Our
Constitution contemplates a single system of law which
is shaped by
the Constitution. To rely directly on section 33 (1) of the
Constitution and on common law when PAJA, which was enacted
to give
effect to section 33 is applicable, is inappropriate. It will
encourage the development of two parallel systems of law,
one under
PAJA and another under section 33 and the common law. Yet this Court
has held that there are not two systems of law regulating
administrative action…”
Counsel for the applicant
argued that the applicant is not relying on a Statute but on common
law principles of legality in that
the respondent usurped the powers
of the Minister of Education when it issued the circular which has
the effect of discriminating
educators who have previously resigned
from their posts. Counsel for the respondent contended that the
applicant failed to specify
the grounds upon which it relies on in
alleging discrimination. In relying on the principles laid down in
Clicks and Others above,
the respondent argued that the legislature
has enacted the
Employment Equity Act 55 of 1998
and the BCEA which,
among others, address equality in the work environment issues. It was
argued that the applicant cannot rely
on common law on this basis,
more so in that the constitutionality of these two Acts is not
challenged.
[10] I am in agreement
with the respondent’s contention as stated in paragraph [9]
above. In paragraph 9 of the notice of
motion the applicant has
stated that it is launching this application in terms of the BCEA.
Section 77
of the BCEA provides that the Labour Court has exclusive
jurisdiction in respect of matters contained in the Act. In
Gcaba
v Minister of Safety and Security
2010 (1) SA 238
(CC);
2010 (1) BCLR
35
(CC)
it was held that
“
Therefore,
section 157(2) should not be interpreted to extend the jurisdiction
of the High Court to determine issues which (as contemplated
by
section 157 (1) have been expressly conferred upon the Labour Court
by the LRA. Rather, it should be interpreted to mean that
the Labour
Court will be able to determine constitutional issues which arise
before it, in the specific jurisdiction areas which
have been created
for it by the LRA, and are covered by section 157(2) (a), (b) and
(c).”
The
Labour court has, as contended by the respondent, exclusive
jurisdiction to hear this application.
[11] The impugned
circular has been withdrawn and is therefore of no force and effect.
There is no need, in my view, to declare
the circular unlawful on
common law grounds. Such declaration will simply be academic. I agree
with counsel for the respondent’s
contention that the applicant
should have amended its papers in this regard. It is correct so that
the applicant can no longer
base its cause of action on a circular
that has already been withdrawn.
[12] On the issue of
costs, I am of the view that I should not follow the general rule
that costs should follow the results. The
circular was withdrawn
after the launching of this application. On the basis of
Biowatch
Trust v Registrar, Genetic Resources 2009 (6) SA232 (CC)
, I deem
it unnecessary to penalise a union for seeking to ventilate the
issues that affect the rights of its members.
[13] In the premises I
make the following order:
i.
The application is dismissed.
ii. No order as to costs
is made.
M.V SEMENYA
JUDGE OF THE HIGH
COURT; LIMPOPO DIVISION.
APPEARANCES:
ATTORNEYS FOR THE
APPLICANT : MARWESHE ATT
COUNSEL FOR THE
APPLICANT : ADV. B.
MARAIS
ATTORNEY FOR THE
RESPONDENT : STATE ATTORNEYS
COUNSEL FOR THE
RESPONDENT : ADV. M S MPHAHLELE
RESERVED
ON
: 18 APRIL 2019
JUDGMENT
DELIEVERED ON
: 05 AUGUST 2019