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[2014] ZAFSHC 201
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MEC: Free State Provincial Government: Department of Education v Letele (A233/2013) [2014] ZAFSHC 201 (23 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A233/2013
In
the appeal between:-
THE
MEC:
FREE STATE PROVINCIAL
GOVERNMENT:
DEPARTMENT OF EDUCATION
…......................................................
Appellant
and
M
L LETELE
…......................................................................................................................
Respondent
CORAM:
EBRAHIM, J, VAN DER MERWE, J
et
JAJI, AJ
HEARD
ON:
23 JUNE 2014
JUDGMENT
BY:
VAN DER MERWE, J
et
JAJI, AJ
DELIVERED
ON:
23 OCTOBER 2014
[1]
The sole issue in this appeal is whether the court
a
quo
was vested with jurisdiction to
entertain the respondent’s claim that she was unlawfully
dismissed from employment.
[2]
The salient facts of the matter are not in dispute. The
respondent (Ms Letele) was employed by the Free State Provincial
Department of Education (the department) in the position of chief
director. During 2010 she was charged with alleged misconduct
pertaining to the appointment of a company of which her husband is a
director, as principal agent in respect of a project to build
a
school hall. A disciplinary hearing took place before an
independent presiding officer and on 3 March 2012 Ms Letele was
found
not guilty of the alleged misconduct. Shortly afterwards the
head of the department addressed a document to the appellant
(the
MEC) in terms of which he purported to note an appeal against the
findings of the presiding officer.
[3]
No appeal hearing involving Ms Letele took place. Nevertheless
she received a letter of termination of employment from
the MEC dated
10 May 2012, in terms of which she was informed as follows:
“
1.
Please be informed that the appeal lodged by the Head of Department
of Education was upheld on the 07/05/2012.
2.
Having been found guilty thereof, you are hereby dismissed as from
the date of receipt of the above letter.”
[4]
On 18 May 2012 Ms Letele referred a dispute to the relevant
bargaining council, that is the Government Public Service Sectoral
Bargaining Council (the council). She relies on unfair
dismissal and seeks compensation. The matter was heard on 30
and 31 January 2013. On 2 February 2013 the presiding
commissioner issued a ruling that the MEC is directed to file an
application
for review of the outcome of the disciplinary hearing
within 30 days and that should he fail to do so, Ms Letele must
request the
council to reschedule the arbitration of the dispute.
The essential reasoning on which this ruling was based was that the
applicable public service Senior Management Services Handbook (the
SMS handbook) does not provide for an appeal by an employer
and that
if the MEC was dissatisfied with the outcome of the disciplinary
hearing, the remedy was to have it set aside on review.
[5]
On behalf of the MEC Ms Letele was informed per letter dated 8 March
2013 that the MEC does not intend to launch a review application
and
indeed desired that the arbitration be rescheduled and continued.
Ms Letele, however, launched the application that served
before the
court
a quo
.
In the papers before the court
a quo
the parties were
ad idem
that the dispute was still pending before the council and had been
postponed pending finalisation of the application before the
court
a
quo
.
[6]
In this application Ms Letele claimed an order in the following
terms:
“
1.
The applicant’s dismissal by the respondent on or about
10
May 2012
be declared
ultra
vires
and
void
ab initio
;
2.
The respondent be ordered to reinstate the applicant as Chief
Director: Free State Provincial Government of Education within
seven
days after the date of this order;
3.
The respondent be ordered to effect payment to the applicant of all
remuneration owing to her, calculated from
10
May 2012
until the date of her formal
reinstatement;”
[7]
In support of prayer 1 above, Ms Letele said the following in her
affidavits:
“
5.3
Thirdly, I have been advised that this court may deal with the matter
precisely because the conduct complained of on the part
of the
respondent had been unlawful. I do not in these proceedings
wish to assert any kind of unfairness as to my dismissal,
nor do I
rely on any of the rights given to me in terms of the Labour
legislation, and more specifically, those commensurate with
fair
labour practices as is defined in the
Labour Relations Act 66 of
1995
.
5.4
It is my case that my dismissal had been unlawful as being contrary
to subordinate legislation, the respondent acted
ultra vires
its powers and I am thus entitled to declaratory relief declaring
these actions to be such.
5.5
I reiterate that I do not wish to indicate in these proceedings that
what has been done to me is unfair – in the Labour
Law context
of the word, I reiterate furthermore that relief based on the
unfairness will be sought at the hearing of the labour
dispute that
is pending before the relevant bargaining council.”
[8]
The crux of Ms Letele’s case was that the SMS handbook has the
status of subordinate legislation, that it does not provide
for an
appeal by the department and that the action of the MEC was therefore
ultra vires
and unlawful. The MEC contended that the court
a
quo
did not have jurisdiction to
entertain Ms Letele’s claims. The MEC argued that the
essential issues were whether the
dismissal of Ms Letele had been
unfair and if so, whether she was entitled to reinstatement and
compensation. The MEC correctly
pointed out that in terms of
section 191 of the Labour Relations Act 66 of 1995 (the LRA) such
disputes between the parties had
to be determined by the council.
[9]
The court
a quo
agreed with the MEC in respect of prayers 2 and 3 above and dismissed
those prayers. It however granted prayer 1 of the notice
of
motion. The court essentially adopted the stance of Ms Letele
set out above. The appeal to this court is with its
leave.
There is no cross appeal.
[10]
In the seminal judgment in respect of jurisdiction in labour related
matters,
Gcaba v Minister of Safety
and Security and Others
2010 (1) SA
238
(CC) it is explained that the Constitution recognises the need
for specialisation in a modern and complex society under the rule
of
law. The legislature is therefore sometimes specifically
mandated to create detailed legislation for a particular area,
such
as the LRA. The court said that once a set of carefully crafted
rules and structures has been created for the effective
and speedy
solution of disputes and protection of rights in such a particular
area of law, it is preferable to use that particular
system and that
if litigants are at liberty to relegate these structures, a dual
system of law would fester in cases of dismissal
of employees,
resulting in undesirable forum-shopping by litigants.
[11]
In paragraph [75] of
Gcaba
the following is said:
“
[75]
Jurisdiction is determined on the basis of the pleadings, as Langa
CJ held in Chirwa, and not the substantive merits of the
case. If Mr
Gcaba's case were heard by the High Court, he would have failed for
not being able to make out a case for the relief
he sought, namely
review of an administrative decision. In the event of the court's
jurisdiction being challenged at the outset
(in limine), the
applicant's pleadings are the determining factor. They contain the
legal basis of the claim under which the applicant
has chosen to
invoke the court's competence. While the pleadings - including, in
motion proceedings, not only the formal terminology
of the notice of
motion, but also the contents of the supporting affidavits - must be
interpreted to establish what the legal basis
of the applicant's
claim is, it is not for the court to say that the facts asserted by
the applicant would also sustain another
claim, cognisable only in
another court. If, however, the pleadings, properly interpreted,
establish that the applicant is asserting
a claim under the LRA, one
that is to be determined exclusively by the Labour Court, the High
Court would lack jurisdiction. An
applicant like Mr Gcaba, who is
unable to plead facts that sustain a cause of administrative action
that is cognisable by the High
Court, should thus approach the Labour
Court.”
[12]
Therefore, in order to ascertain whether the court
a
quo
had jurisdiction, the notice of
motion and supporting affidavits before it had to be properly
interpreted. What is in essence
a labour dispute, is not
changed by giving it another name or label. Substance must
prevail over form. Ms Letele admits
that the MEC was clothed
with the power to dismiss her. What she contends is that the
SMS handbook does not provide for an
appeal by the employer.
The SMS handbook was not placed before the court. I accept,
without deciding, that it has the
status of subordinate legislation.
There is however no reason not to accept the submission on behalf of
the MEC that the
SMS handbook deals solely with matters of
procedure. On this basis it must be concluded that in essence
Ms Letele’s
case was that she was dismissed by a person
admittedly empowered to do so, but despite the fact that she had been
found not guilty
at the disciplinary hearing. Despite her
disavowal this is nothing other than a complaint of dismissal without
fair reason
and not in accordance with fair procedure. This
falls squarely within section 188 of the LRA, with the result that
the jurisdiction
of the High Court was excluded by section 191 of the
LRA.
[13]
This conclusion can be tested by asking whether an order simply
declaring that the dismissal was unlawful, could have any practical
effect for Ms Letele. The answer is no. Ms Letele can
only obtain the compensation that she seeks if the council finds
that
she had been unfairly dismissed.
[14]
Counsel for the respondent referred us to the judgment of the full
court of this division in the matter of
Tlali
v Mantsopa Local Municipality and Others
(A78/11) [2011] ZAFSGC (1 December 2011). In that matter a
municipal council resolved that a contract of employment of an
employee thereof would expire on a certain date in the future.
Without reference to
Gcaba
,
the full court declared the resolution to be unlawful on the ground
that it constituted termination of a contract of employment
without
“… sufficient reason recognised by law”. In
my view it is not necessary to consider this judgment
any further as
it is clear that the determination of what a case amounts to on a
proper interpretation of the pleadings, depends
on the particular
facts of each case.
[15]
It follows that the appeal must succeed. Counsel for the
appellant fairly did not ask for costs of the appeal or in the
court
below.
[16]
The following order is issued:
1.
The appeal is upheld, with no order as to costs.
2.
The order of the court
a quo
is set aside and replaced with the following:
“
1.
The application is dismissed.
2.
There is no order as to costs.”
C.H.G.
VAN DER MERWE, J
N.P.
JAJI, AJ
I
concur.
_____________
S.
EBRAHIM, J
On
behalf of appellant:
Adv W.R. Mokhari SC
Instructed
by:
c/o
State Attorney
BLOEMFONTEIN
On
behalf of respondent:
Adv. S. Grobler
Instructed
by:
Kramer
Weihmann & Joubert
BLOEMFONTEIN