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[2013] ZAFSHC 88
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Msibi v Premier: of Free State Province (A286/2012) [2013] ZAFSHC 88 (30 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A286/2012
In the matter between:
MSIBI M.S.
.....................................................................................
Applicant
and
THE PREMIER: FREE
STATE PROVINCE
..............................
Respondent
_______________________________________________________
CORAM:
RAMPAI, AJP
et
LEKALE, J
_______________________________________________________
HEARD ON:
13 MAY 2013
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
DELIVERED ON:
30 MAY 2013
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] The applicant was
employed as the Head of the Government Garage within the Free State
Provincial Government until 5 September
2012 when he received a
letter dated 29 August 2012 from the respondent which terminated his
five year employment contract prior
to its expiry in June 2014 as
follows:
“…
I
have decided to redetermine your contract of employment to terminate
on the 31
st
August
2012 and you are released from service with immediate effect.
”
[2] The letter in
question was preceded by a letter of 13 August 2012 which was
delivered to the applicant in strictest confidence
by the Free State
Director General who, after learning that the applicant never signed
a fixed term contract as required by applicable
law, advised him not
to act on it and to await a feedback from her after her consultation
with the respondent. On 4 September 2012
the applicant learned from
the Director General that a letter was already on its way to him.
That letter turned out to be the termination
letter referred to
above. He feels aggrieved by the termination of his employment
contract and now moves this court in terms of
Rule 53 of the Uniform
Rules of Court (the Rules) for an order in terms of which:
“
1. The
respondent’s decision to terminate and the respondent’s
termination of the applicant’s fixed term contract
of
employment on the 5
th
September
2012, by way of letter dated the 29
th
of
August 2012 … are … reviewed and set aside.
2. The respondent is ordered to pay
the costs of this application.
”
[3] In response to the
motion the respondent filed a notice in terms of Rule 6(5)(d)(iii) of
the Rules on 6 December 2012 to the
effect that:
“
5. A
claim by a public sector employee to review the termination of his
employment contract on the grounds that it is a breach of
his
constitutional right to lawful, rational or fair administrative
action guaranteed under PAJA, is bad in law.
”
ISSUE IN DISPUTE
[4] The parties,
thereafter, filed heads of arguments effectively confined to the
question whether or not the termination of the
applicant’s
employment contract constitutes an administrative action as defined
by the Promotion of Administrative Justice
Act 3 of 2000 (PAJA) read
with section 33 of the Constitution of Republic of South Africa 1996
(the Constitution) so as to be reviewable
in terms of PAJA.
CONTENTIONS FOR THE
APPLICANT
[5] Mr Halgryn contends
that the question for determination is really whether or not the
termination of the applicant’s employment
contract, as Head of
Department as opposed to ordinary general public service officer,
constitutes administrative action in terms
of PAJA. In his view the
present matter is distinguishable from matters such as
Chirwa v
Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC) (
Chirwa
) in
that the applicant was a Head of Department and his contract was a
statutory instrument. The enquiry into whether or not the
termination
of such a contract is an administrative action ends with the finding
that it was a statutory instrument and it is,
as such, not necessary
to enquire into whether or not the termination in question has a
direct external legal effect. The termination
of the contract in the
instant matter was arbitrary insofar as the respondent used the
provisions of the Public Service Act 14
of 2004 (the PSA), which
empower him to appoint officers such as the applicant, to achieve an
irrational purpose not intended by
the PSA.
CONTENTIONS FOR THE
RESPONDENT
[6] Mr Bruinders,
appearing for the respondent, submits that the termination of the
employment contract
in casu
does not constitute an
administrative action in the same way that the dismissal of the
applicant in
Chirwa
did not amount to administrative
action. The applicant was an employee as against the respondent, when
the impugned decision was
made, and the fact that he was the Head of
Department does not change that relationship. The applicant’s
remedy does not
reside in PAJA and may be assessed through a claim
for alleged unfair labour practice and/or a claim based on contract.
In employment
relationships the constitutional right implicated is
the right to fair labour practices and the applicable legislation for
enforcing
the same is the Labour Relations Act 95 of 1996 (LRA) and
not PAJA which seeks to enforce and protect the constitutional right
to fair administrative justice.
APPLICABLE LEGAL
PRINCIPLES
[7] Mr Halgryn correctly
submits that the respondent, as the Premier, is authorised to appoint
heads of departments, such as the
applicant, and further has the
power to grant special service benefits to such heads of departments
before or at the expiry of
their terms of office or at the time of
dismissal from the public service under certain circumstances. (See
section 12(1) and (4) of PSA.)
[8] Section 1 of PAJA
defines an
administrative action
in relation to an organ of
state, such as the respondent, as
“
any
decision taken, or any failure to take a decision by-
(a) an organ of state when-
exercising a power in terms of the
Constitution of a Provincial constitution; or
exercising a public power or
performing a public function in terms of any legislation.
(b) …
which affects the rights of any
person adversely and has direct, external effect.
”
[9] Section 33 of the
Constitution and PAJA are concerned with and are applicable to
situations where organs of state or private
persons engage with the
public through the exercise of public power and performance of public
functions by virtue of the Constitution,
provincial constitution,
legislation or any other empowering provisions. They are intended to
protect members of the public in
their capacities as such and not
employees as and when they receive raw deals at the hands of their
employers. Skweyiya J observed
as follows in
Chirwa
at
paragraph [47]:
“
The
purpose of the administrative justice provisions is to bring about
procedural fairness in dealings between the administration
and members of the public.
”
[10] The following dictum
by Sachs J in
Minister of Health and Another v New Clicks South
Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as
Amici Curiae
)
2006 (2) SA
311
(CC) at paragraph [583] is, further, apposite:
“
I believe
that s 33 of the Constitution and PAJA are together designed to
control the exercise of public power in a special and
focused manner,
with the object of protecting individuals or small groups in their
dealings with the public administration
from unfair processes or
unreasonable decisions.
”
[11] As Mr Bruinders
correctly points out,
“
Generally
employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA… When
a
grievance is raised by an employee relating to the conduct of the
State as employer and it has few or no direct implications
or
consequences for other citizens, it does not constitute
administrative action.
”
(See
Gcaba v
Minister for Safety and Security
2010 (1) BCLR 35
(CC) at
paragraph [64] (
Gcaba
)
.
[12] It is correct, as
contended for the respondent, that section 23 of the Constitution
guarantees the right to fair labour practices
as between employer and
employee while LRA gives effect to that right. Section 33 of the
Constitution, on its part, deals with
the relationship between the
State, as bureaucracy, and citizens by according to everyone the
right to lawful, reasonable and procedurally
fair administrative
action in their dealings with organs of state and private persons
when exercising public power or performing
public functions. PAJA
elaborates upon and gives effect to that right. (See
Gcaba
at paragraph [64] and
Makhanya v University of Zululand
2010 (1) SA 62
(SCA) at paragraph [11]).
APPLICATION OF
LEGAL PRINCIPLES AND FINDINGS
[13] Mr Halgryn contends
that, if it is found that the applicant’s employment contract
was a statutory instrument, it is not
necessary to determine whether
or not termination of the same had direct and external legal effect
so as to constitute an administrative
action within the meaning of
PAJA. This cannot, with respect, be correct because PAJA clearly
requires the impugned decision to,
inter alia
, have a direct
external legal effect in the sense that its “
impac
t”
is not limited to the applicant but has “
direct consequence
”
for “
other citizens
”. (See section 1 of PAJA and
Gcaba
at paragraph [66].)
[14] It is, thus,
imperative for the applicant to show not only that his employment
contract was a statutory instrument but also
that its termination, by
the respondent, impacts him not only in his capacity as an employee
but that it also extends beyond the
employment relationship and
affects him as a member of the public who was related to the
respondent in that capacity as and when
the impugned decision was
made. In my view, what comes out of decisions such as
Chirwa
and
Gcaba
is that, for the purposes of the definition
of administrative action in employment relationships, what matters is
the relationship
between the exercise of public power and/or
performance of public function and the aggrieved applicant when the
impugned decision
is made. The decision in question, when it is made,
should strike beyond the employment relationship to have a direct
external
effect in the sense of impacting upon people outside that
relationship or the aggrieved applicant in his capacity as a member
of
the public. The seniority of the affected employee does not
determine whether or not the impugned decision or conduct of the
employer
is administrative action as opposed to an unfair labour
practice in much the same way as the nature of the employer, as
either
a public or private employer, cannot determine whether its
conduct is administrative action or unfair labour practice. Indeed,
as correctly submitted for the respondent, the status of the
applicant as Head of Department does not change the relationship
between
him and the respondent from one of employment as at the time
of the impugned decision. (See
Chirwa
at paragraph
[142] referred to with approval in
Gcaba
at paragraph
[66].)
[15] In our view the
termination of the applicant’s employment contract is not an
administrative action and appears to be
a “
quintessential
”
employment matter in the same way as the failure to promote and
appoint the applicant in
Gcaba
was found to be a
“
quintessential labour- related issue
”. The point
raised by the respondent is, therefore, well taken. (See
Gcaba
at paragraph [66].)
ORDER:
[16] The application is
dismissed with costs.
______________
L. J. LEKALE, J
I concur.
________________
M.H. RAMPAI, AJP
On behalf of applicant:
Adv T.J. Bruinders SC
Instructed by:
State Attorney
Aliwal Street
BLOEMFONTEIN
On behalf of respondent:
Adv Leon Halgryn SC
Sandton Village Sandton
Instructed by:
Lovius Block Attorneys
BLOEMFONTEIN
/spieterse