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[2013] ZAFSHC 144
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Letele v MEC of Free State Provincial Government, Department of Education (1893/2013) [2013] ZAFSHC 144 (29 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1893/2013
In
the matter between:-
M.L.
LETELE
.............................................................................
Applicant
and
THE
MEC: FREE STATE PROVINCIAL
GOVERNMENT
DEPARTMENT OF EDUCATION
..............
Respondent
_____________________________________________________
HEARD ON:
8
AUGUST 2013
_____________________________________________________
JUDGMENT BY:
THAMAGE, AJ
_____________________________________________________
DELIVERED ON:
29 AUGUST 2013
_____________________________________________________
[1] Applicant is an
unemployed female residing at Hillsboro, Bloemfontein. The respondent
is the Member of the Executive Council
Free State Provincial
Government Department of Education, cited in his official capacity.
[2] Applicant approached
this court for 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
re-instate the applicant as Chief Director: Free State Provincial
Government Department of Education
within seven days after 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
date of her formal reinstatement.
4. That the respondent be ordered to
pay the costs of the application.
5. Further and/or alternative relief.”
[3] Prior to the
applicant’s dismissal, she was employed by the Department of
Education as a Chief Director for at least a
period of 12 years with
an annual salary of R833 000.00. During 2010, she was charged
with misconduct and the charges were
contravention of treasury
regulations. On 3 March 2012, she was exonerated from any wrongdoing
by the Misconduct Presiding Officer
and this prompted the respondent
to file notice to appeal. The appeal was never held nor did the
respondent request any representation
from her. Respondent then
furnished applicant with a dismissal letter on 10 May 2012 stating
that the appeal was upheld. Applicant
then approached the Government
Public Service Sectoral Bargaining Council whereupon the Commissioner
issued a ruling that the action
of the respondent was
ultra
vires
.
[4] The primary issues
are whether the court has jurisdiction to entertain and adjudicate
the applicant’s case and whether,
from the applicant’s
papers, applicant has made out a case for adjudication by this court.
[5] Section 169 of the
Constitution states as follows:
“
A High Court
may decide-
any constitutional matter except
matter that-
only the Constitutional Court may
decide
is assigned by an Act of Parliament
to another court of a
status similar to a High Court
, and any
other matter not assigned to another Court by an Act of Parliament.”
(my emphasis)
[6]
Section 157
of the
Labour Relations Act 66 of 1995
states as follows:
“
(1) Subject
to the Constitution and section 173, an except where this Act
provides otherwise, the Labour Court has
exclusive
jurisdiction in respect of all matters that elsewhere in terms of
this Act or in terms of any other law are to be determined by
the
Labour Court.
(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 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.” (my
emphasis)
[7] Counsel for the
applicant submitted that this court has jurisdiction to entertain the
matter and secondly this court has to
decide whether or not the
applicant’s case is valid in law. On the contrary, counsel for
the respondent argued that this
court has no jurisdiction and that
the applicant ought to have proceeded in terms of the
Labour
Relations Act 66 of 1995
, alternatively she should have taken the
decision of the respondent in terms of PAJA, but the High Court would
still lack jurisdiction
as respondent’s action does not
constitute a reviewable decision on the principle of legality,
because it would be a review
relating to a dismissal of the employee.
[8] Applicant on her
papers specifically stated as follows:
“
I do not in
these proceedings wish to assert any kind of unfairness as to my
dismissal, nor do I rely on my rights given to me in
terms of the
Labour Legislation and more specifically, those commensurate with
fair labour practices as defined in the
Labour Relations Act 66 of
1995
.”
She further on
specifically stated that she does not rely on PAJA.
[9]
The question of jurisdiction and the formulation of a cause of action
has been decided by the Constitutional Court in
Gcaba v
Minister for Safety and Security and Others
2010
(1) SA 238
(CC) at p 263 paragraph 75:
“
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.” (my emphasis)
[10]
The provisions of
section 157
of the
Labour Relations Act is
very
clear, the High Court has concurrent jurisdiction on matters which
are not exclusive to the Labour Court. The result being
that not all
matters relating to labour or employment are
per
se
excluded from the High Courts’
jurisdiction. The pleadings or the notice of motion, together with
the supporting affidavits
should be scrutinised and be interpreted so
as to determine the legal basis of the applicant’s claim. See
Gcaba v Minister for Safety and Security and Others
,
supra
.
[11] Having said that, I
had to interpret the applicant’s claim and to determine the
legal basis of her claim. Her main claim
is to get a declaratory
order declaring her dismissal by the respondent
ultra vires
and
void ab initio
. She also prays for what she calls
ancillary relief of re-instatement and her salary from date of
dismissal till date of re-instatement.
For purpose of this judgment I
will deal with the main claim of declaratory order and the ancillary
claim will be dealt with later
on this judgment.
[12] Applicant is relying
on what is called SMS Handbook, which is a subsidiary legislation
from the Public Service Regulations
of 2001. She also states that the
SMS Handbook as well as the Public Service Regulations, do not allow
the filing and the prosecuting
of the appeal by the employer on the
findings of the chairperson of the misconduct hearing. In short, the
applicant’s case
is that the respondent acted
ultra vires
the subordinate legislation namely Public Service Regulations. This
averment was never challenged nor disputed by the respondent
in its
affidavit and the response to this was
“
The contents
of this paragraph are irrelevant.”
Although the applicant
had indicated in her affidavit that the SMS Handbook will be made
available on the date of hearing of this
application, she never did.
I am inclined to believe her statement as the contents of her
averments were never challenged nor disputed
in the opposing
affidavit, the probabilities are thus in favour of the applicant.
[13] From the Notice of
Motion as well as applicant’s affidavit, it is clear that
applicant’s case is based on the action
of the respondent being
ultra vires
the subordinate legislation. I thus come to the
conclusion that the nature of applicant’s claim does not fall
exclusively
in the jurisdiction of the Labour Court hence this
court’s jurisdiction is not ousted to entertain the application
for a
declaratory order.
[14] At the hearing of
this matter, I requested both counsel to argue the point
in limine
of jurisdiction, as well as the merits of the application as the
issues were so intertwined to each other.
[15] Applicant’s
argument was heavily based on the SMS Handbook as being the
subsidiary legislation. Respondent on the other
hand as per his heads
of argument and the opposing affidavit, did not address the merits
but rather concentrated on the issue of
the court lacking
jurisdiction. Having said so, respondent further argued that
applicant has no cause of action as she does not
assert any right in
terms of the SMS Handbook, and that the handbook is silent as to the
procedure of appeal by the respondent
if he is aggrieved by the
decision of the misconduct hearing chairperson. Respondent further
argued that applicant does not assert
any right based on contract of
employment.
[16] It is common cause
that SMS Handbook does not have provision for the appeal by the
employer once dissatisfied with the decision
of the misconduct
hearing chairperson, whilst on the contrary it has appeal process by
the employee. The recourse of the employer
is therefore to take the
matter on review.
[17] Applicant seeks
declaratory relief based on the principle of legality. In
MEC
for Education, Northwest Provincial Government v Gradwell
(2012) 33 ILJ 2033 (LAC) at 2039, Murphy AJA stated as follows:
“
The
‘SMS Handbook’ referred to in the letter is the ‘Senior
Management Service Handbook’ which applies to
senior management
in the public service. The terms and conditions of the senior
management of the public service, from the level
of Director upwards,
are not regulated by collective bargaining, but are determined by the
Minister for the Department of Public
Service and Administration by
means of subordinate legislation issued in terms of the Public
Service Regulations 2001, which determinations
are referred to and
known as the ‘SMS Handbook’.”
[18] I fully align myself
with the remark of Murphy AJA. The action of the respondent was
contrary to the subordinate legislation,
thus the respondent had
acted
ultra vires
. Consequently the respondent’s action
is
void ab initio
.
[19] Applicant also
claimed an amount of R973 671.72 being her remuneration from the
date of dismissal to date of hearing of
this application as well as
re-instatement. Counsel for the applicant argued that once an
employee can accordingly show that the
termination of his contract
was unlawful, he or she is entitled to ancillary relief. Counsel for
respondent argued that the claim
for ancillary relief is purely a
Labour Court matter and the High Court does not have jurisdiction to
entertain the application.
Applicant referred to
Fedlife
Assurance Ltd v Wolfaardt
2002 (1) SA 49
(SCA) and that the
decision was confirmed by the SCA on
Gcaba
,
supra
.
[20] Reliance on
Fedlife
Assurance Ltd
and
Gcaba
decisions is misplaced.
In
Fedlife Assurance Ltd
,
supra
, the cause of
action was based on a breach of contract of fixed term employment,
i.e. the enforcement of contract of employment.
Contrary to this
current application, applicant wishes the court to declare the action
by respondent
ultra vires,
i.e. she applies for a declaratory
order. If she was seeking the enforcement of employment contract, she
could have done so unequivocally
in her papers and not only put what
she calls ancillary relief. In
Gcaba’s
,
supra
,
cause of action was based on violation of Constitutional rights to
just administrative action as contemplated by the Promotion
of
Administrative Justice Act (PAJA). So,
Gcaba’s
matter is distinguishable from this matter.
[21] Furthermore,
applicant relied on an unreported decision of this court’s full
bench, namely
Moeketsi Fredi Tlali v Mantsopa Local
Municipality
, Appeal No. A78/11. Once again reliance on this
decision was misplaced, particularly on the issue of ancillary
relief. The court
was not called upon to decide the re-instatement
and arrear remuneration, but to decide on the lawfulness of the
dismissal. I fully
endorse the court’s decision on the
unlawfulness of the dismissal.
[22] This court does not
have jurisdiction to entertain matters which are exclusively meant
for the Labour Court. See section 157
of LRA,
supra
. In
Transnet Ltd and Others v Chirwa
[2007] 1 BLLR 10
(SCA), the minority judgment of Cameron JA (as he then was) and Mpati
DJP concurring state as follows on page 36 paragraph [66]:
“
However,
as mentioned earlier, Brassey AJ also granted retrospective
reinstatement. In my view, that was wrong. In administrative
law the
subject is usually entitled only to have the decision at issue set
aside, and the matter remitted for a fresh decision.
By reinstating
the employee, Brassey AJ substituted his view of her fitness and
capacity for that of the employer.”
On page 29 paragraph [48]
Cameron JA further stated:
“
However,
he granted the employee reinstatement with nine months’
back-pay. That I think was wrong. In my view, reinstatement
should be
refused altogether: the matter should go back to Transnet for a
proper hearing. Even on this approach, however, the employee
was
entitled to at least
declaratory
relief
…”
(my emphasis)
[23] The Labour Court is
thus a specialised court to entertain the ancillary relief claimed by
the applicant, Cameron AJA on
Transnet
matter
supra
at page 36 paragraph [67] further stated:
“…
ordinary
courts must be careful in employment-related cases brought by public
employees not to usurp the labour courts’ remedial
powers, and
their special skills and expertise.”
[24]
This court has common law jurisdiction to award a declaratory order,
it is however not having jurisdiction to award consequential
relief
or what the applicant calls ancillary relief. This court had declared
the unlawfulness of the action by the respondent and
leaves it to the
parties to act in whatever manner is necessary to correct the
situation.
In the circumstances
applicant does not succeed in regards to the claims for the
re-instatement and arrear remuneration.
ORDER
[25] The following order
is thus made:
The applicant’s
dismissal by the respondent on or about 10 May 2012 is declared
ultra vires
hence unlawful and
void
ab initio
.
The respondent is
ordered to pay the costs of the application.
_________________
S.J. THAMAGE, AJ
On
behalf of applicant: Adv. S. Grobler
Instructed
by:
Kramer
Weihmann & Joubert
BLOEMFONTEIN
On
behalf of respondent: Adv. W.R. Mokhari SC
Instructed
by:
State Attorney
BLOEMFONTEIN
/spieterse