Makambi v Member of Executive of Council, The Department of Education, Eastern Cape Province (638/2006) [2008] ZASCA 61; [2008] 4 All SA 57 (SCA); 2008 (5) SA 449 (SCA); [2008] 8 BLLR 711 (SCA); (2008) 29 ILJ 2129 (SCA) (29 May 2008)

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[2008] ZASCA 61
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Makambi v Member of Executive of Council, The Department of Education, Eastern Cape Province (638/2006) [2008] ZASCA 61; [2008] 4 All SA 57 (SCA); 2008 (5) SA 449 (SCA); [2008] 8 BLLR 711 (SCA); (2008) 29 ILJ 2129 (SCA) (29 May 2008)

Links to summary

REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number: 638/06
Reportable
In the matter between:
NOMTHA
MAKAMBI
...
APPELLANT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL THE DEPARTMENT OF EDUCATION,
EASTERN
CAPE PROVINCE
...
RESPONDENT
CORAM
:
FARLAM, NUGENT, MLAMBO, MAYA JJA et MHLANTLA AJA
HEARD
:
18 MARCH 2008
DELIVERED
:
29 MAY 2008
SUMMARY:
Constitutional Law
- whether High Court has jurisdiction to review termination of
emoluments and benefits of educator in state school.
Neutral
citation: This judgment may be referred to as
Makambi
v MEC, Education, Eastern Cape
(638/06)
[2008] ZASCA 61
(29 May 2008).
__________________________________________________
JUDGMENT
__________________________________________________
FARLAM JA
[1] This is an appeal
from a judgment of Manjezi AJ sitting in the Bhisho High Court.
[2] The appellant in this
matter is an educator. She started her teaching career with the
Eastern Cape Department of Education in
May 1997 when she took up a
temporary contract appointment at the Kubusie State School near
Stutterheim in the King William’s Town
district. Although the
period of her initial appointment was from 22 May 1997 to 31 December
1997 she continued to work at that school
until early in 2004 when
she was advised by the department that she would be transferred to
the Tyilekani Primary School.
[3] The letter she
received from the department, which was dated 31 March 2004, read as
follows:
‘
RE: TEMPORARY PLACEMENT AS AN
ADDITIONAL EDUCATOR:
PERSAL NO 53208862 YOURSELF: Ms NOMTHA
MAKAMBI
1. Kindly be informed that you will be
placed additional to the establishment of TYILEKANI PRIMARY SCHOOL
until further notice.
2. Your co-operation is highly
appreciated.’
[4] The appellant
thereafter discharged her duties as an educator at the Tyilekani
Primary School. In June 2004 she received a further
letter from the
department dated 15 June 2004. In the heading to this letter she was
reflected as being on the staff establishment
of the Kubusie State
Primary School, the school at which she had taught before being
transferred to the Tyilekani Farm School. The
letter read as follows:
‘
DECLARING YOURSELF IN ADDITION OF
THE STAFF ESTABLISHMENT OF THE ABOVE SHOOL
The post allocation of schools has
been revised with effect from 1 January 2004.
After following the prescribed steps,
you have been declared as in addition and must be redeployed.
If it is known that a vacancy will
occur in your school within six months, you will be considered for
the post and absorption will
depend on the requirements of the post
and your experience and qualifications.
If you cannot be absorbed in a vacancy
in your school the opportunity will be afforded to you to apply for
posts elsewhere in the
District through a closed vacancy bulletin.
Meanwhile you are required to continue
at your current school and to perform the duties that the Principal
requires you to perform,
until you receive your placement letter.’
[5] From the commencement
of the appellant’s employment in 1997 she received her monthly
emoluments and other concomitant benefits
on the 20
th
of each month. On 20
August 2004 she did not receive her emoluments and other benefits.
This was despite the fact that she had not
received the further
notice referred to in the department’s letter of 31 March 2004 nor
the placement letter referred to in the
department’s letter of 15
June 2004 nor any other notification.
[6] On 20 August 2004,
accompanied by Mr Z.H. Mzili, the principal of the Kubusie State
School, the appellant had an interview with
a Mr Tshabe, a senior
official of the department, who stated that the appellant was a
temporary educator and that the department
was entitled to terminate
her employment. On 23 August 2004 the principal, vice-chairperson and
secretary of the Kubusie State School
wrote to the department
requesting that the appellant be employed as a permanent educator.
[7] On 7 October 2004, in
a letter signed by the district director for the King William’s
Town district, the department wrote as
follows to the appellant:
‘
REQUEST FOR AMENDMENT OF NATURE OF
APPOINTMENT FROM TEMPORARY TO PERMANENT CS EDUCATOR: YOURSELF
Kindly be advised that the application
for the change of your nature of appointment from temporary to
permanent CS educator has not
been approved.
Your status therefore remains
unchanged.’
[8] On 12 November 2004
the appellant brought an application as a matter of urgency against
the respondent, the member of the executive
council for the province
of the Eastern Cape responsible for education, seeking,
inter
alia,
orders:
(a) ‘directing that the
administrative action of the Respondent, in terminating the payment
of the [appellant’s] emoluments and
the curtailment of her
concomitant benefits with effect from 1 August 2004 be judicially
reviewed and declared unlawful in terms
of the provisions of the
Promotion of Administrative Justice Act 3 of 2000
, and reinstating
her benefits associated with her employment by the Respondent with
effect from 1 August 2002’; and
(b) ‘declaring [her]
status as an educator to be of a permanent nature’.
[9] In her founding
affidavit the appellant contended that the department’s conduct in
terminating her emoluments in the way it
did constituted ‘an unfair
labour practice as contemplated by
section 8
of the Constitution’.
(It was common cause at the hearing of the appeal that what was meant
was s 23 of the Constitution.) She
also contended that the
department’s conduct constituted ‘administrative action which is
unlawful, unreasonable and procedurally
unfair as is contemplated by
section 33 of the Constitution’.
[10] The deponent to the
answering affidavit filed on behalf of the respondent, Mr Fikile
Xasa, the district director of the department
stationed in King
William’s Town, averred that the appellant was at all relevant
times a temporary educator in the employ of the
department and that
the department was entitled to terminate her employment. Before
dealing with the merits of her application, however
he raised three
in
limine
objections
to her application, two of which were upheld by the court
a
quo.
These
were:
(1) that she had not exhausted the
internal remedies available to her because she had not made use of
the grievance procedure set
forth in Chapter H of the Personal
Administrative Measures of the Education Labour Relations Council as
required by
s 7(2)(a)
of the
Promotion of Administrative Justice Act
3 of 2000
; and
(2) that the High Court did not have
jurisdiction to hear the application as the administrative action of
which the appellant complained
amounted to an unfair labour practice
and should have been dealt with in terms of
s 191
of the
Labour
Relations Act 66 of 1995
.
[11] Manjezi AJ, after
hearing argument in the matter, made an order on 2 December 2004
dismissing the application with costs. As
I have said he upheld the
two
in
limine
objections
summarised above. He added:
‘
I find it therefore unnecessary to
determine the merits of the application.’
[12] This appeal was
originally set down for hearing on 13 November last year but was
removed from the roll and then set down for
hearing on 18 March this
year at the request of the parties. The request was based on the fact
that it was anticipated that the ground
covered by the second point
in
limine
would
be decided by the Constitutional Court in
Chirwa
v Transnet Limited and Others,
the
decision in which was expected towards the end of November last year.
The Constitutional Court’s decision was in fact delivered
on 28
November 2007. It has since been reported: see
Chirwa
v Transnet Ltd
[2007] ZACC 23
;
2008
(3) BCLR 251
(CC).
[13] Ms
Collett,
who
appeared for the appellant, endeavoured to distinguish the present
case from
Chirwa
because,
as she put it, from the outset the appellant did not base her case on
its being a labour dispute as such but relied on an
alleged violation
of her constitutional right to just administrative action, unlike Ms
Chirwa who first took her complaint to the
Commission for
Conciliation, Mediation and Arbitration and only went to the High
Court when conciliation failed. While it is true
that in this case,
unlike in
Chirwa,
the
appellant did not first seek to initiate the process in the
Commission for Conciliation, Mediation and Arbitration, I do not
think
that is a material distinction.
Chirwa
has
held that a claimant in the position of the appellant (and Mrs
Chirwa) does not have an election, and thus the fact that the
appellant
did not make an election is immaterial.
[14] Ms
Collett
also submitted, relying
on the recent decisions of Revelas J in the South Eastern Cape Local
Division in
Mkumatela
v Nelson Mandela Metropolitan Municipality,
case
no 2314/06, delivered 28 January 2008, and Froneman J in the Bhisho
High Court in
Nakin
v MEC, Department of Education, Eastern Cape Province,
case no 77/2007,
delivered on 22 February 2008 that the Constitutional Court in
Chirwa
did not
overrule its earlier decision in
Fredericks
v MEC for Education and Training, Eastern Cape,
[2001] ZACC 6
;
2002
(2) SA 693
(CC), and that the appellant was entitled on the strength
of that decision to bring her claim in the High Court.
[15] It is true that the
majority in
Chirwa
did not
overrule
Fredericks
but
were content to distinguish it. For the purposes of considering Ms
Collett’s submission on this point it is necessary to have
regard
to the basis on which
Fredericks
was
distinguished in Skweyiya J’s judgment in order to ascertain where
he drew the line between the two cases and on which side
of that line
the present case falls. The matter was dealt with in paras 56 to 61
of Skweyiya J’s judgment. Para 58 includes the
following:
‘
Notably, the applicants in
Fredericks
expressly
disavowed any reliance on section 23(1) of the Constitution, which
entrenches the right to a fair labour practice. Nor did
the claimants
in
Fredericks
rely
on the fair labour practice provisions of the LRA [the
Labour
Relations Act 66 of 1995
] or any other provision of the LRA.’
It is correct that the
appellant did not rely on any of the provisions of the LRA but she
did in terms rely on s 23(1) of the Constitution,
which entrenches
the right to fair labour practices. As Skweyiya J put it (at para
66), ‘the LRA seeks to regulate and give effect
to’ this section
of the Constitution.
[16] It is instructive in
this regard to examine Ms Chirwa’s claim, which it was held she
could not bring in the High Court. As
appears from para 157 of the
dissenting judgment of Langa CJ, with whom Mokgoro and O’Regan JJ
concurred, she contended that her
dismissal was administrative action
as understood by the Promotion of Administrative Justice Act 3 of
2000 (which I shall call in
what follows ‘PAJA’). The
administrative action of which she complained contravened, so she
alleged, (i) s 3(2)(b) of PAJA for
failing to provide proper notice;
(ii) s 6(2)(a)(iii) of PAJA because the administrator who took the
decision to dismiss her was
biased; (iii) s3(3)(a) of PAJA because
she was prevented from obtaining assistance or representation; (iv) s
6(2)(b) of PAJA because
a mandatory and material procedure prescribed
by an empowering provision was not complied with; and (v) s
6(2)(f)(i) because the
action taken against her contravened another
law. Ms Chirwa sought in respect of the last two complaints to rely
on items 8 and 9
of Schedule 8 to the LRA. Because of this Skweyiya J
held (at para 61) that ‘when she approached the High Court she made
it clear
that her claim was based on a violation of the provisions of
the LRA’.
[17] When one compares
the complaints set out in the appellant’s founding affidavit, which
I have summarised in para 9 above, with
those on which Ms Chirwa
relied it is clear that it is not possible to hold that this case
falls on the
Fredericks
side of
the line of distinction drawn in the
Chirwa
case. It follows that Ms
Collett’s submission that
Fredericks
applies cannot be upheld.
[18] Mr
Bloem,
who
appeared for the respondent, contended before us that the effect of
the
Chirwa
decision
is that the appellant may not pursue her claim in the High Court
and that the appeal
accordingly falls to be dismissed. I think that is correct.
[19] In the circumstances
I am of the view that the appeal should fail. In view of the fact
that the appellant came to court to assert
what she perceived to be
her rights under the Constitution I do not think that a costs order
should have been made against her in
the court
a
quo
nor
should such an order be made in this court.
[20] The following order
is made:
1. Subject to paragraph 2
the appeal is dismissed.
2. The order made in the
court
a
quo
on
2 December 2004
is
amended by the deletion of paragraph 2 thereof.
_________________
IG FARLAM
JUDGE
OF APPEAL
CONCUR
:
MLAMBO
JA)
MAYA
JA)
MHLANTLA
AJA)
NUGENT
JA
:
[21] I concur in the
order that is proposed by my colleague but I prefer to set out
separately the reason for my concurrence lest
it be misunderstood.
The problem that I have arises from the Constitutional Court’s
recent decision in
Chirwa
v Transnet Limited
,
1
which purported to
distinguish, but not overrule, its earlier contrary decision in
Fredericks
v MEC for Education and Training, Eastern Cape.
2
The
Chirwa
decision presents itself
for application in this case – which is materially
indistinguishable from both
Chirwa
and
Fredericks
on the jurisdictional
question. But regrettably I can find no clear legal – as opposed to
policy – reason for the outcome in
Chirwa
.
Nonetheless, as I explain presently when elaborating upon the reasons
for my conclusion, apart from its jurisdictional ruling
Chirwa
indicates that the
dismissal of a public-service employee does not constitute
administrative action. That finding is equally applicable
to this
case and it is on that narrow basis that I agree that the appeal
should fail.
[22] The appellant was
employed in the public service. She claims that her right to just
administrative action – having its source
in s 33 of the
Constitution and elaborated and codified in the
Promotion of
Administrative Justice Act 3 o
f 2000
3
(PAJA) – was infringed
by her employer. She applied to the high court for an order to remedy
the alleged infringement. Her employer
(for whom the respondent has
been nominally cited) objected to the jurisdiction of that court to
consider her claim and the objection
succeeded. (The court below also
ruled on another preliminary point but that need not be dealt with.)
[23] Jurisdictional
objections of the kind that are relevant to this case have shown
remarkable resilience. They were taken on similar
grounds in four
cases that came before this court –
Fedlife
Assurance Ltd v Wolfaardt
,
4
United National Public
Servants Association of SA v Digomo NO
,
5
Boxer Superstores,
Mthatha v Mbenya
6
and
Transnet
Ltd v Chirwa
7
–
and were consistently
dismissed. A similar objection was also unanimously dismissed by the
Constitutional Court in
Fredericks
v MEC for Education and Training, Eastern Cape.
8
[24] In
Chirwa
the claim (brought in the
high court) was also for the enforcement of the claimant’s
constitutional right to just administrative
action (through the
medium of PAJA) as it had been in all the cases to which I have
referred (but for
Fedlife
9
).
This court held that the claim fell within the ordinary jurisdiction
of the high court, but four members were equally divided on
whether
the dismissal of the claimant constituted ‘administrative action’
as contemplated by PAJA. (The conclusion reached by
Conradie JA was
decisive against the claimant but it went off on other grounds.
10
)
[25] On appeal to the
Constitutional Court the claimant’s appeal was unanimously
dismissed. Eight members of that court
11
held that the high court
had no jurisdiction to consider the claim. Seven of those members
(Skweyiya J excluded) went on to hold that
the dismissal did not
constitute administrative action. A minority (Langa CJ with the
concurrence of Mokgoro and O’Regan J) held
that the high court had
jurisdiction to consider the claim but that the dismissal did not
constitute administrative action.
[26] It is the decision
of the majority on the jurisdictional question that raises the
difficulty in this case. We are now confronted
by two decisions of
the Constitutional Court – its unanimous decision in
Fredericks
and its majority decision
in
Chirwa
–
that seem to oblige
us to go in diametrically opposed directions on that issue. That
resulted in submissions being made by counsel
that were simple and
symmetrical. Counsel for the respondent submitted that the decision
of the majority of the Constitutional Court
in
Chirwa
obliges us to uphold the
jurisdictional objection (and thus dismiss the appeal). Counsel for
the appellant submitted that the unanimous
decision of the
Constitutional Court in
Fredericks
(which was not overruled
in
Chirwa
)
obliges us to dismiss the jurisdictional objection (and thus uphold
the appeal). Counsel for the appellant also submitted that this
case
is distinguishable from
Chirwa
but for reasons that will
become apparent I need not deal with that submission.
[27] Our rules of
precedent require a court generally to follow the decisions of a
court of higher authority. I do not think that
rule is without
limitations but it is not necessary to explore those limitations in
this case.
[28] What a court is to
do when confronted with conflicting decisions of a higher court has
naturally received little attention in
systems that observe the
ordinary rules of precedent. But
Salmond
on Jurisprudence
suggests
the following solution:
12
‘
Where authorities of equal standing
are irreconcilably in conflict, a lower court has the same freedom to
pick and choose between
them as the schizophrenic [higher] court
itself. The lower court may refuse to follow the later decision on
the ground that it was
arrived a
per
incuriam
, or it may follow
such decision on the ground that it is the latest authority. Which of
these two courses the court adopts depends,
or should depend, upon
its own view of what the law ought to be.’
The author describes the
freedom that the higher court (and by extension the lower court) has
as follows:
‘
Although the later court is not
bound by the decision so given
per
incuriam
, this does not
mean that it is bound by the
first
case. Perhaps in strict logic the
first case should be binding, since it should never have been
departed from, and was only departed
from
per
incuriam
. However, this is
not the rule. The rule is that where there are previous inconsistent
decisions of its own, the court is free to
follow either. It can
follow the earlier, but equally, if it thinks fit, it can follow the
later.’
[29] It is in that
context that an analysis of the decision in
Chirwa
becomes necessary but
some background is helpful to that analysis.
[30] Whether a court has
jurisdiction (in the sense that is now relevant) to consider a
particular claim depends upon the nature of
the rights that the
claimant seeks to enforce. (Whether the claim is good or bad in law
is immaterial to the jurisdictional enquiry.
13
)
I think it can be taken to be trite that a claim for the enforcement
of the constitutional right to just administrative action (through
the medium of PAJA) falls within the ordinary jurisdiction of the
high courts.
Section 157(2)
of the
Labour Relations Act (LRA
) confers
concurrent jurisdiction on the Labour Court in respect of such claims
in certain circumstances.
14
It follows that a claim
that falls within the terms of that section is capable of being
pursued either in the high court or in the
Labour Court. Any
suggestion that the effect of that section is to oust the ordinary
jurisdiction of the high courts in respect of
such claims was firmly
put to rest in
Fredericks
in the following terms:
15
‘
Whatever else its import,
s 157(2)
cannot be interpreted as ousting the jurisdiction of the High Court
since it expressly provides for a concurrent jurisdiction.’
There are also various
rights that are accorded to employees by the LRA that are not
enforceable in the high courts but only through
the mechanisms that
are provided for in the LRA.
[31] The jurisprudential
objections that were taken in the cases I have referred to – and
that was taken in this case – were all
taken on the same basis. In
each case it was contended by the objector that the claim was not
what it purported to be (a claim for
enforcement of the right to just
administrative action that fell within the jurisdiction of the high
courts
16
)
but was instead a claim for enforcement of rights conferred upon the
claimant by the LRA (which falls outside the jurisdiction of
the high
courts). In effect the objectors purported to substitute the claim
that had been made with the claim that had not been made
by calling
it the latter.
[32] But things cannot be
made to be what they are not merely by calling them something else
and that applies as much to legal claims
as to other things. Where
the lower courts construed the claim to be other than the claim that
it purported to be
17
the objections were
consistently upheld. Where courts dealt with the objection on the
basis that the claims were indeed what they
purported to be the
objections were consistently dismissed.
18
In both cases the outcome
was inevitable, depending upon whether the claim was dealt with for
what it was, or whether it was substituted
in effect with a claim
that it was not.
[33] That problem did not
arise in
Chirwa
–
although
there are passages in the two majority judgments that might at face
value suggest the contrary.
19
One thing is clear beyond
a shadow of doubt – notwithstanding other difficulties I have had
interpreting those judgments – which
is that the court construed
the claim as being one for the enforcement of the claimant’s
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 – the question
whether the dismissal constituted administrative action could simply
not have arisen.
[34] That the claim in
that case was a claim for the enforcement of the constitutional right
to just administrative action must necessarily
be the starting point
for the enquiry as to whether the high court had jurisdiction.
Notwithstanding close and repeated study of
the majority judgments
over a considerable period of time I regret that I have not been able
to discover a legal basis for the finding
that the high court has no
jurisdiction over a claim of that kind. I have already pointed out
that it is trite that a claim for the
enforcement of the
constitutional right to just administrative action falls within the
ordinary jurisdiction of the high courts.
The fact that the claim
arises from an employment relationship does not place it within the
exclusive jurisdiction reserved to the
Labour Court by
s 157(1)
of the LRA (as pointed out by Skweyiya J,
20
citing with approval the
decision in
Fredericks
on that point.
21
)
And if the claim falls within the ambit of
s 157(2)
then the
ordinary jurisdiction of the high courts is expressly preserved (as
pointed out in
Fredericks
and not overruled by
Chirwa
).
[35] But if
Chirwa
and
Fredericks
were at one on the nature
of the claim that was in issue in each case, and on the proper
construction of the applicable law, one is
left with the question why
the outcome in each case differed.
[36] In attempting to
resolve that question I have not found it helpful to scrutinise
sentences, or even paragraphs, of the majority
judgments in
isolation, because on the face of it there seem to me to be
inconsistencies. I think that the import of
Chirwa
more easily becomes
apparent from viewing the judgments more broadly and as a whole. From
that perspective it seems to me that the
distinction between that
case and
Fredericks
does not lie in opposing
views held by the respective courts on the law but lies rather in the
premise upon which each was decided.
[37] I think a fair
reading of the two judgments makes it clear that the majority was of
the view that the objective of the Act was
both to encompass
employees in the public service and also to be exhaustive of their
rights arising from their employment, notwithstanding
that the
legislature had expressed itself to the contrary in s 157(2).
22
With that as its starting
point the majority considered it to be desirable as a matter of
policy that such employees should pursue
complaints arising from
their employment only through the mechanisms of the
Labour Relations
Act and
to attain that objective it decided that the high courts must
not exercise their ordinary jurisdiction in such cases.
[38] That construction of
the judgments seems to me to be consistent with the various
references to what
should
or
should
not
be permitted (expressed
in various ways)
23
in contradistinction to
what
is
or
is
not
permitted by the statute.
It also explains why
Fredericks
was not overruled as a
matter of law (the majority distinguished it on its facts but I am
unable to see how the factual distinction
that was relied upon could
be material). It is also the only construction that would be
consistent with the appeal by the majority
to the legislature to
revisit
s 157(2)
of the LRA,
24
for if the outcome that
it considered to be desirable had been one that the law dictated
there would be no cause for legislative intervention.
Moreover, that
construction of the majority judgments seems to me to be expressly
acknowledged by the observation of Skweyiya J that
‘
although one should be ‘loathe
[to deprive] a litigant of existing rights where she or he is
accorded more than one right by the
Constitution or any other
enabling legislation, it is unsatisfactory that the High Court should
be approached to decide review applications
in terms of PAJA where
the LRA already regulates the same issue to be reviewed.’
25
[39] While the outcome in
Chirwa
might indeed be desirable
I am not at all sure that this court is bound – or even permitted –
to adopt and apply a supposed policy
if the legislature has not
embodied that policy in law. I share the following reservation that
was expressed by the Chief Justice:
26
‘
We must be careful, as a court, not
to substitute our preferred policy choices for those of the
Legislature. The Legislature is the
democratically elected body
entrusted with legislative powers and this Court must respect the
legislation it enacts, as long as the
legislation does not offend the
Constitution.’
[40] Fortunately I have
not found it necessary to confront that question in this case.
Applying the decision in
Fredericks
–
which
seems to me to be good law until it is overruled or superseded by
amending legislation – I think the appeal must in any event
be
dismissed.
[41] Ten members of the
Constitutional Court held in
Chirwa
that the dismissal that
was there in issue did not constitute administrative action as
contemplated by PAJA and on that ground alone
the appeal in that case
fell to be dismissed. (If the high court did not have jurisdiction to
pronounce upon the merits of the claim
then it seems to me that the
Constitutional Court similarly had no jurisdiction and its finding on
that issue would not be authoritative
but on the approach that I take
to the matter that difficulty does not arise.) On that issue I think
I am bound to follow the decision
of the Constitutional Court
27
whatever my own view
might be on the matter. I do not think the conduct that is complained
of in this case is materially distinguishable
from the conduct that
was in issue in
Chirwa
.
It is on that ground that I agree that the appeal should be dismissed
and concur in the order proposed by my colleague.
____________________
R.W. NUGENT
JUDGE OF APPEAL
1
[2007] ZACC 23
;
2008
(3) BCLR 251
(CC).
2
[2001] ZACC 6
;
2002
(2) SA 693
(CC).
3
Minister
of Health v New Clicks SA (Pty) Ltd
2006
(2) SA 311
(CC) para 95.
4
2002
(1) SA 49
(SCA).
5
[2005]
26 ILJ 1957 (SCA).
6
2007
(5) SA 450
(SCA).
7
[2007]
1 All SA 184
(SCA).
8
[2001] ZACC 6
;
2002
(2) SA 693
(CC).
9
The
claim in Fedlife was for the enforcement of a contractual right.
10
For
a discussion of the judgment of Conradie JA in this court see D
Holness and G Devenish: ‘The law in relation to claims relating
to
dismissal: jurisprudential principle or legal pragmatism?’ (2008)
71 THRHR p. 142.
11
Moseneke
DCJ, Madala, Ngcobo, Nkabinde, Sachs, Skweyiya and Van der
Westhuizen JJ and Navsa AJ.
12
12
ed by PJ Fitzgerald p. 152-53.
13
Cf
Langa CJ in
Chirwa
para
155.
14
Section
157(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 –
(a)
employment and from labour relations;
(b)
any
dispute
over
the constitutionality of any executive or administrative act or
conduct, or any threatened executive or administrative act
or
conduct, by the State in its capacity as an employer; and
(c)
the application of any law for the administration of which the
Minister
is
responsible.’
15
Para
41.
16
But
for
Fedlife
,
in which the claim was for the enforcement of a contractual right.
17
Sometimes
purporting to ‘characterise’ the claim but in truth substituting
one claim for the other.
18
This
court in
Fedlife
,
Digomo
,
Boxer
Superstores
and
Chirwa
,
and a unanimous Constitutional Court in
Fredericks
.
19
See
Skweyiya J at para 63 in which the word ‘claim’ is incorrectly
used. What was said in that paragraph to be the claim was
instead
the allegations and submissions made by the claimant in support of
her claim. Also Ngcobo J at para 125, which refers to
what the
‘dispute concerns’ whereas the proper enquiry is what rights the
claim seeks to enforce.
20
Skweyiya
J at para 25.
21
Fredericks
para
40.
22
Ngcobo
J observed that the word ‘concurrent’ in that section was
‘unfortunate’ for the achievement of the supposed objective
of
the Act.
23
See
Skweyiya J at paras 65, 66, 67 and 68 and Ngcobo J at paras 125 and
126.
24
See
Skweyiya J at para 71.
25
Para
40. Although the judgment of Conradie JA in this court is also
difficult to deconstruct it seems to reflect a similar approach.
26
Para
174.
27
By
which I mean the ten members (excluding Skweyiya J) who decided that
issue.