About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 177
|
|
Transnet Ltd. and Others v Chirwa (024/05) [2006] ZASCA 177; [2007] 1 All SA 184 (SCA); 2007 (2) SA 198 (SCA); [2007] 1 BLLR 10 (SCA); (2006) 27 ILJ 2294 (SCA) (29 September 2006)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE NO: 024/2005
In the matter between
TRANSNET LIMITED FIRST
APPELLANT
TRANSNET PENSION FUND SECOND APPELLANT
PATRICK IAN SMITH NO THIRD
APPELLANT
and
PETRONELLA NELLIE NELISIWE CHIRWA RESPONDENT
___________________________________________________________
CORAM: MPATI DP, CAMERON, MTHIYANE, CONRADIE and JAFTA JJA
HEARD: 28 FEBRUARY 2006
DELIVERED: 29 SEPTEMBER 2006
___________________________________________________________
Summary:
Jurisdiction in an employment dispute
raising a constitutional issue - whether Labour Court has exclusive
jurisdiction in such matters.
Termination of employment contract by a state organ -
whether that constitutes administrative action under s 1 of PAJA or
may violate
s 33 of the Constitution.
Order in para 18.
Neutral Citation:
This judgment may be referred to as
Transnet Limited v PNN Chirwa [2006] SCA 131 (RSA).
___________________________________________________________
JUDGMENT
MTHIYANE JA:
MTHIYANE
JA:
[1] This is an appeal from the judgment of Brassey AJ sitting in the
Johannesburg High Court. According to his judgment the decision
by
the first appellant, Transnet Ltd (Transnet), to dismiss the
respondent, Ms Petronella Nellie Nelisiwe Chirwa (‘the
applicant’),
from her employment on 22 November 2002, was set
side. The dismissal was preceded by an enquiry held by the third
appellant, Mr Patrick
Ian Smith, into her work performance. The court
ordered reinstatement of the applicant on terms and conditions no
less favourable
than those that operated on 22 November 2002 and
directed that its order operate retrospectively for a period of nine
months from
the date of the order, namely 25 February 2004.
[2] The enquiry commenced with a letter by Smith to the applicant on
15 November 2002, inviting her to attend the hearing on Friday
22
November 2002. The applicant, a Human Resource executive manager of
Transnet’s Pension Fund Business Unit at the time, was
called
upon to respond to allegations of inadequate performance,
incompetence and poor employee relations. In the letter Smith, the
Chief Executive Officer of the Pension Fund Business Unit and the
applicant’s supervisor, also advised the applicant that her
future at Transnet would be decided at the enquiry.
[3] At the hearing the applicant refused to participate in the
proceedings mainly because she objected to the fact of Smith
presiding.
Her reason for doing so was that Smith could not act as
the complainant, witness and presiding officer at the same time. Her
objections
were summed up by the judge
a quo
as follows:
‘
In the present case, the common cause facts
reveal that, three days before the enquiry into the applicant’s
competence was initiated,
she [the applicant] received a mere slap on
the wrist (a warning) in disciplinary proceedings initiated by her
superior [Smith],
and that she had, only the day before, lodged a
formal grievance against him. If he had considered the matter
dispassionately, Mr
Smith (the manager in question and the third
(appellant) in these proceedings) must surely have realized that,
however impartial
he subjectively considered himself to be, he could
not but seem to the applicant to be biased against her.’
Notwithstanding her objection Smith proceeded with the enquiry, at
the conclusion of which the applicant was dismissed. Smith’s
argument was that as her manager and supervisor, he was not only
entitled, but indeed the most suitable person, to do so, in that
no
one else would be able to assess the applicant’s work (see
Eskom v Mokoena
.)
1
No evidence was placed by affidavit or otherwise before Brassey AJ to
suggest the contrary. As to the grievance referred to in the
judgment, Smith said that as at 22 November 2002 he was unaware of
the grievance proceedings lodged against him, because the letters
dealing with that complaint had not yet been brought to his attention
at the time. I pause here to point out that since these proceedings
are on motion, it is Smith’s version of the facts that should
have been accepted. (See
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
.)
2
However it seems as if the court based its findings with regard to
application of the rules of natural justice and the failure to
observe them on the applicant’s version.
[4] Although the applicant challenged her dismissal on the basis that
it violated her right to administrative action that was lawful,
reasonable and procedurally fair as enshrined in s 33 of the
Constitution, Brassey AJ decided the matter, without going into the
merits, on the principles laid down in
Administrator, Transvaal, v
Zenzile
3
and
Administrator, Natal, & Another v Sibiya
4
.
In these cases it was held that the termination of a contract of a
public
sector employee was an exercise of public power which
is subject to the principles of natural justice and administrative
law. The
learned judge held that since Transnet was an organ of state
(
Transnet Ltd v Goodman Brothers (Pty) Ltd
)
5
,
the applicant was entitled to the application of the rules of natural
justice, which he found were breached when the decision to
dismiss
was taken. The judge declared the dismissal a nullity and granted
Transnet and the other respondents leave to appeal to this
court.
[5] On appeal two issues were raised. The first is whether the
dismissal was a matter which fell to be determined exclusively by
the
Labour Court in terms of s 157(1) of the Labour Relations Act 66 of
1995 (‘the LRA’). The second was whether the
dismissal of
the applicant constituted an administrative action as defined in s 1
of the Promotion of Administrative Justice Act
3 of 2000 (PAJA).
[6] I deal first with the issue of whether the High Court had
jurisdiction to hear and determine the dismissal dispute given the
provisions of s 157(1) of the LRA. I quote s 157(1) and (2) of the
LRA
in extenso
:
‘
157 Jurisdiction of Labour Court
Subject to the Constitution and section 173, and 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.
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 –
employment and from labour relations;
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
the application of any law for the administration of
which the
Minister
is responsible.’
The appellant alleges that the ‘termination of [her] services
constituted a violation of [her] right to administrative action
that
is lawful, reasonable and procedurally fair as enshrined in s 33 of
the Constitution.’ She thus raised a constitutional
issue
justiciable in the High Court.
6
The High Court derives its power to deal with such a matter from s
169 of the Constitution. The Labour Court on the contrary has
‘concurrent jurisdiction’ with the High Court in respect
of any violation of a constitutional right. It does not have
general
jurisdiction on labour matters where a constitutional dispute is
raised. The applicant could therefore institute proceedings
in either
the Labour Court or the High Court. That she deliberately exercised
her option, is clear from her founding affidavit where
she says:
‘
I have been advised that I have, available to me,
more than one cause of action; one flowing from the Bill of Rights as
enshrined
in the Constitution of this country as read with the
provisions of PAJA. For practical considerations and in the exercise
of my constitutional
right of access to the courts I have elected to
base my cause of action on the Constitution and the PAJA and to
approach the above
named Honourable Court for appropriate relief.’
[7] If an employment dispute raises an alleged violation of a
constitutional right a litigant is not confined to the remedy
provided
under the LRA and the jurisdiction of the High Court is not
ousted. The position was dealt with by the Constitutional Court in
Fredericks v MEC for Education and Training, Eastern Cape
.
7
In
Fredericks
O’Regan J said:
‘
[T]he High Court “may decide any
constitutional matter” other than a matter that falls within
the exclusive jurisdiction
of the Constitutional Court or a matter
“assigned by an Act of Parliament to another Court of a status
similar to a High Court.”’
And further:
‘
As there is no general jurisdiction afforded to
the Labour Court in employment matters, the jurisdiction of the High
Court is not
ousted by s 157(1) simply because a dispute is one that
falls within the overall sphere of employment relations. The High
Court’s
jurisdiction will only be ousted in respect of matters
that “are to be determined” by the Labour Court in terms
of the
Act.’
The question raised in the above case was whether the employees’
constitutional right to just administrative action had been
infringed
and whether this issue was justiciable in the High Court.
[8] The subject has arisen in matters dealt with by this court. In
Fedlife Assurance Ltd v Wolfaardt
8
Nugent AJA, writing for the majority, said that Chapter 8 of the
1995 Act (meaning the LRA) was not exhaustive of the rights and
remedies
that accrue to an employee upon the termination of
employment. In that case the court held that whether approached from
the perspective
of the constitutional dispensation and the common law
or merely from a construction of the LRA itself, an employee was not
deprived
of the right to enforce a common law contract and that his
or her right to do so was not abrogated by the LRA (paras 17 and 22).
The same approach was adopted in the judgment of this court in
United
National Public Servants Association of South Africa v Digomo NO
9
.
There Nugent JA said:
‘
The remedies that the
Labour Relations Act
provides
against conduct that constitutes an “unfair labour
practice” are not exhaustive of the remedies that might be
available
to employees in the course of the employment relationship.
Particular conduct by an employer might constitute both an “unfair
labour practice” (against which the Act provides a specific
remedy) and it also might give rise to other rights of action.
The
appellant’s claim in the present case was not that the conduct
complained of constituted an ‘unfair labour practice’
giving rise to the remedies provided for by the
Labour Relations Act,
but
that it constituted administrative action that was unreasonable,
unlawful and procedurally unfair. Its claim was to enforce the right
of its members to fair administrative action – a right that has
its source in the Constitution and that is protected by s 33
–
which is clearly cognizable in the ordinary courts.’
[9] The topic has also been dealt with in the high courts. In
Mbayeka
v MEC for Welfare, Eastern Cape
10
Jafta J had to consider an application by government employees
who challenged their suspensions from duty without emoluments as
invalid/or
being unconstitutional and thus sought reinstatement. The
employer resisted the application on the basis that the High Court
had
no jurisdiction in the matter. The employer contended that the
dispute fell within the exclusive jurisdiction of the LRA in terms
of
section 157(1). The learned judge rejected the argument and held that
on a proper interpretation of section 157(2) of the LRA:
‘
. . . the Labour Court will never enjoy exclusive
constitutional jurisdiction even in matters where the cause of action
is confined
to an alleged violation of the right to fair labour
practices simply because that is a constitutional right in terms of
section 23
of the Constitution.’
The point made in the judgment is in my view unanswerable and
especially instructive in this case where the complaint is that Smith
breached the applicant’s right to administrative action that is
lawful, reasonable and procedurally fair - a constitutionally
entrenched right under s 33 of the Constitution. As to the Labour
Court’s power to adjudicate on this right, as pointed out
in
Mbayeka
, it merely enjoys ‘concurrent [as opposed to
exclusive] jurisdiction with the High Courts.’
[10] For the above reasons I conclude that the High Court had
jurisdiction in the matter. I now turn to consider the question
whether
the termination of the applicant’s contract of
employment with Transnet violated her ‘right to administrative
action
that is lawful, reasonable and procedurally fair’. For
the success of her challenge as framed or pleaded the applicant has
to establish that the dismissal constituted administrative action as
defined in s 1 of PAJA. The applicant’s case is that Transnet
is an organ of state. With that I agree. When Smith conducted an
enquiry leading to the dismissal, continues the applicant, he was
performing an administrative action. That is moot, and with that I
cannot agree, as I shall seek to demonstrate later in the judgment.
[11] Even though all administrative actions are subject to review
under PAJA (subject to the exclusions in PAJA itself) Brassey AJ
did
not submit the decision to dismiss to scrutiny under PAJA. He
determined that it was sufficient to apply the common law as laid
down in
Zenzile
as already indicated above. In my view he
erred. The ‘cause of action for judicial review of
administrative action now ordinarily
arises from PAJA, not from the
common law as in the past’(
Minister of Health v New Clicks
SA (Pty) Ltd)
.
11
In
New Clicks
Chaskalson CJ said:
‘
[95] PAJA is the national legislation that was
passed to give effect to the rights contained in section 33. It was
clearly intended
to be, and in substance is, a codification of these
rights. It was required to cover the field and purports to do so.
[96] A litigant cannot avoid the provisions of PAJA by
going behind it, and seeking to rely on s 33(1) of the Constitution
or the
common law. That would defeat the purpose of the Constitution
in requiring the rights contained in section 33 to be given effect
by
means of national legislation.’
(See also
Zondi v MEC
for Traditional and Local Government Affairs
.)
12
[12] Section 33 of the Constitution confers a right to administrative
action that is lawful, reasonable and procedurally fair; PAJA
gives
effect to this right. The common law principles developed by the
courts to control the exercise of public power are now regulated
by
the Constitution. (
Pharmaceutical Manufacturers Association of SA:
In re ex parte President of the Republic of South Africa
.)
13
The common law informs the provisions of PAJA and the Constitution
and derives its force from the latter. The extent to which the
common
law remains relevant to administrative review will have to be
developed on a case by case basis as the courts interpret and
apply
the provisions of PAJA and the Constitution (
Bato Star Fishing
)
14
.
[13] As already indicated, in order to secure the relief that she
sought, the applicant had to establish that the decision of Smith
constituted administrative action as defined in s 1 of PAJA. The
definition reads:
(i) ‘
administrative action
’ means any
decision taken, or any failure to take a decision
,
by –
(a) an organ of state, when –
(i) exercising a power in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation; or
a natural or juristic person, other than an organ of
state, when exercising a public power or performing a public
function in terms
of an empowering provision,
which adversely affects the rights of any person and
which has a direct, external legal effect.’
To this end, it was incumbent upon the applicant to establish that
Transnet is an organ of state; that the decision to dismiss her
was
taken either in the exercise of public power or the performance of a
public function in terms of some legislation. In addition
it had to
be shown that the decision to dismiss adversely affected her rights.
[14] It is clear from the papers that in terminating the applicant’s
contract of employment, Transnet, through Smith, was not
exercising a
public power or performing a public function in terms of any
legislation. In
President of the RSA v South African Rugby
Football Union
15
dealing with the acts of the President of the Republic it was
said:
‘
. . . the test for determining whether conduct
constitutes administrative action is not the question whether the
action concerned
is performed by a member of the executive arm of
government.
What
matters
is not so much the functionary as the function
.
The question is whether the
task itself is
administrative or not
’. [Emphasis added]. As was
pointed out by Nugent JA in
Grey’s Marine Hout Bay (Pty) Ltd
v Minister of Public Works
,
16
whether a particular conduct constitutes administrative action
depends primarily on the
nature of the power
that is being
exercised rather than upon the
identity of the person
who does
so. [Emphasis added] By parity of reasoning Smith’s conduct did
not therefore fall within the definition of ‘administrative
action’ as defined in PAJA. No reference is made in the
applicant’s founding affidavit to any provision in the
Constitution,
a Provincial Constitution or legislation. In
Cape
Metropolitan Council v Metro Inspection Services (Western Cape) CC
17
Streicher JA said that s 33 ‘is
not
concerned with every act of administration performed by an organ of
State. It is designed to control the conduct of the public
administration when it performs an act of public administration ie
when it exercises public power.’
18
Whether or not conduct is ‘administrative action’ would
depend on the nature of the power being exercised. Other
considerations
which may be relevant are the source of the power, the
subject-matter, whether it involves the exercise of a public duty and
how
closely related it is to the implementation of legislation.
19
The principle of the decision in
Cape Metro
is the following.
The fact that a state organ, as Transnet is, derives its power to
enter into a contract from statute does not mean
that its right to
terminate it is also derived from public power. As Streicher JA said,
Zenzile
is no authority for that proposition. Mr Madlanga who
appeared for the applicant did not argue that
Cape Metro
was
wrongly decided. The decision goes to the heart of the applicant’s
case and there is no reason not to follow it. It is useful
to draw on
the remarks of Holmes JA in
S v Graham
20
where he had to consider a series of judgments that had been the
subject of academic criticism. The learned judge said: (at 577A)
‘
The foregoing decisions have not escaped academic
criticism, but they stand as judgments of this Court. They were
referred to in the
arguments in the instant case without criticism
and I need say no more than that I am unpersuaded that they are
manifestly wrong.
They are therefore binding.’
[15] Brassey AJ found that the applicant’s dismissal is
administrative action subject to administrative law by relying on the
decision in
Zenzile
. In
Zenzile
the court held that the
public authority’s statutory power to dismiss public section
employees was subject to administrative
law particularly the right to
be heard before their dismissal, despite the existence of a right to
dismiss at common law or in contract.
21
The decision and the two others that followed it (
Administrator,
Natal, v Sibiya
22
and
Minister of Water Affairs v Mangena
)
23
are distinguishable in that they were dealt with before the new
definition of administrative action in PAJA; the employees’
conditions of service in those cases were governed by legislation.
24
Under PAJA, which now governs the position, conduct only amounts to
administrative action if it is the exercise of public power or
the
performance of a public function in terms of any legislation. The
nature of the power or function is paramount, the identity
of the
functionary exercising the power or performing the function,
secondary. The question requires an analysis of the nature of
the
power or function exercised. That in turn requires a consideration
of,
inter alia
, the source of the power or function exercised,
its nature, its subject matter, whether it involves the exercise of a
public duty
and how closely it is related to legislation. The nature
of the conduct involved here is the termination of a contract of
employment.
It is based on contract and does not involve the exercise
of any public power or performance of a public function in terms of
some
legislation. Ordinarily
25
the employment contract has no public law element to it and it is not
governed by administrative law.
26
The mere fact that Transnet is an organ of state does not impart a
public law character to its employment contract with the applicant.
The power to dismiss is found, not in legislation, but in the
employment contract between Transnet and the applicant. When it
dismissed
the applicant, Transnet did not act as a public authority
but simply in its capacity as employer. The factual matrix in which
Zenzile
,
Sibiya
and
Mangena
were decided has
changed. Furthermore at the time, public sector employees were
expressly excluded from the Labour Relations Act,
28 of 1956 by
virtue of which employees were entitled to be heard. At the time of
her dismissal by Transnet the applicant, like public
sector
employees, enjoyed protection under the LRA, which is the statutory
embodiment of the constitutional right to fair labour
practices.
Although s 23(2) of the Constitution imports into the employment
contract a reciprocal duty to act fairly it does not
deprive the
employment contract of its legal effect (see
Denel (Edms) Bpk v
Vorster
.
27
)
For the above reasons it has not been shown that the dismissal of the
applicant by Transnet was an administrative action as defined
in PAJA
or that any of her rights under s 33 of the Constitution were
violated.
[16] Mr Madlanga submitted that even if it were found that the
applicant could not succeed on the basis of PAJA the principles
enshrined
in s 195 of the Constitution inured to the applicant’s
benefit and were sufficient to afford her relief. I do not agree.
Section
195 does not create rights but sets out the basic values and
principles that govern public administration. Although Transnet as an
organ of state is bound by those principles I do not think that the
applicant’s right to relief could be founded on the section.
[17] In the result the appeal is upheld with costs, including costs
consequent upon the employment of two counsel. The order of the
court
a quo
is replaced with the following:
‘The application is dismissed with costs.’
_______________________
KK
MTHIYANE
JUDGE OF APPEAL
CONCUR:
JAFTA JA
CONRADIE JA
[18] I respectfully agree that the appeal should be upheld. The
respondent sought to review her dismissal by Transnet because, she
said, the administrative procedures culminating in the dismissal had
been tainted by unfairness, and the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) vouchsafed her the right to procedurally
fair administrative treatment, a right guaranteed by s 33 of
the
Constitution, one on which she could rely for lawful, reasonable and
procedurally fair administrative action even if she could
not invoke
PAJA.
[19] It is important to understand just
what the respondent’s case is. She articulates it in the
penultimate paragraph of her
founding affidavit:
'I have been advised that I have available to me more
than one cause of action; one flowing from the LRA, and another
flowing from
the Bill of Rights as enshrined in the Constitution of
this country as read with the provisions of PAJA. For practical
considerations,
and in the exercise of my constitutional right of
access to courts I have elected to base my cause of action on the
Constitution
and the PAJA and to approach the above-named honourable
court for appropriate relief.'
[20] The respondent had first tried the labour dispute
resolution route prescribed by the Labour Relations Act 66 of 1995
(LRA). The
compulsory conciliation process before the Commission for
Conciliation Mediation and Arbitration came to naught. The CCMA
issued
a certificate to that effect. 'For practical considerations
and in the exercise of [her] constitutional right of access to court'
the respondent then shopped for another forum, the Johannesburg High
Court. By reason of the provisions of s 157(1) of the LRA she
could
not bring the same claim before that court, so she changed her cause
of action from an unfair dismissal under the LRA to a
claim of unfair
administrative action under PAJA or, if that should fail, one based
on a violation of her constitutional right to
procedurally fair
administrative action. The crisp but uncommonly difficult question
before us is whether she was entitled to have
done so.
[21] In
United National Public Servants Association of SA v Digomo
NO
&
others
28
a commission investigating irregular promotions in the department
of health and welfare in Gazankulu instructed the department of
health of the Northern Province to establish a task team to determine
which civil servants qualified for promotion on the basis of
merit
and seniority; the task team carried out its assessment on the basis
of seniority only. The applicant trade union approached
the high
court on behalf of its members, complaining that their right to fair
administrative action had been infringed. The only
question before
the supreme court of appeal was whether the lower court had been
correct in concluding that, since the conduct of
the department
involved an unfair labour practice, the union was seeking relief
within the labour field that a high court had no
jurisdiction to
grant. On appeal the court found that on the applicant’s
allegations the court did have jurisdiction. Whether
or not the
allegations sustained a cause of action was not an issue before the
court of appeal.
29
[22] We are called upon to consider whether the court below had
jurisdiction to review under PAJA an act performed by the state in
its capacity as an employer; if it had the jurisdiction, whether it
correctly found that the respondent has a claim under PAJA; and
whether, if she does not, she nevertheless has a claim under the
Constitution.
30
I have set out the issues in their logical sequence, but I deal with
the first two in their order of importance.
[23] In the court
a quo
Brassey AJ decided that the
respondent’s dismissal by Transnet was an administrative act.
He relied for that conclusion on
Administrator, Transvaal, and
others v Zenzile and others
31
and the cases that followed it.
32
Zenzile
held that the dismissal of an employee by a provincial
government
33
was not simply the termination of a contractual relationship but
amounted to an act pursuant to the exercise of a public power which
made it administrative in nature. This, it was held, obliged such an
employer to apply the rules of natural justice appropriate to
the
exercise of public power under the common law. Despite the applicant
having requested that the quality and consequences of her
dismissal
be assessed under PAJA, which had by then come into force, the
Zenzile
principles nevertheless played a crucial role in
deciding whether the dismissal of a public sector employee amounted
to the exercise
of a public power.
[24] Whether or not the dismissal of an employee of the state or one
of its organs might be characterized as administrative action
within
the meaning of PAJA has been the subject of consideration before
several courts whose conclusions have not been harmonious.
34
What appears to be the prevailing labour court view is articulated in
a thoughtful judgment by Murphy AJ who said in
South African
Police Union and another v National Commissioner of the Police
Service and another
35
–
' . . . our Constitution draws an explicit distinction between
administrative action and labour practices as two distinct species
of
juridical acts, and subjects them to different forms of regulation,
review and enforcement.'
[25] Pillay J in
Public Servants Association v MEC for Agriculture
& others
36
added the weight of her opinion to the debate by declaring:
'. . . pursuant to the affirmation of the interim Constitution and
the final Constitution that everyone has a right to fair labour
practices, the LRA, the EEA and the Basic Conditions of Employment
Act 75 of 1997 (the BCEA) codified labour and employment rights.
Adjustments were also made to other national laws, such as the Public
Service Act (Proc 103 of 1994), the Police Services Act 68
of 1995
and the
Employment of Educators Act 76 of 1998
to bring them in line
with the Constitution. Remedies for non-compliance are codified in
the LRA. Similarly, the EEA and BCEA were
also promulgated prior to
PAJA with a view to codifying the right to equality in the context of
employment and labour standards respectively.'
[26] In my view the interpretational difficulties to which the
provisions of the LRA and PAJA have given rise can only be addressed
by an holistic approach. The real enquiry in this case is not whether
the decision to dismiss the respondent amounted to administrative
action. I am prepared to accept that it did. After all, any proper
dismissal enquiry in the public domain necessarily has the procedural
attributes of administrative action. PAJA governs all administrative
action falling within its scope. But not all administrative
action
falls within its scope. The definition of ‘administrative
action’ in s 1 of PAJA excludes certain administrative
acts
from its ambit. It does not exclude a decision by a public sector
employer to dismiss an employee. This omission has been interpreted
37
as an indication that such a decision might, provided all the other
requirements of the definition are met, be considered administrative
action. In the light of the considerations that I mention later the
failure to exclude a dismissal from the definition is not decisive.
[27] The important question is whether the structure of the
legislation entails that dismissals in the public domain be dealt
with
as administrative acts; since the advent of the LRA the answer
must be no. Nothing could be further from the true effect of the
legislation
than that every dismissal of an employee from the service
of an organ of state or the state itself should at the option of the
employee
be litigated in either the high court or the labour court.
It does not fit in with the state’s desired comprehensive
scheme
of labour regulation.
38
The legislative intent evident from the LRA is beyond doubt: it is to
subject a dispute about the unfair dismissal of any employee
falling
within its scope to the dispute resolution mechanisms of that Act. If
there is a way to give effect to that intention, I
think one should
try to find it.
[28] The LRA lays down the elements of procedural fairness that it
considers essential for a valid dismissal decision by an employer.
PAJA, enacted seven years later, lays down the procedural elements
for a lawful and fair administrative decision. It applies not
only to
all decisions of the state but to all decisions of all bodies
exercising public power or fulfilling a public function of
whatever
description. Its scope is broader than that of the LRA which is a
special statue regulating a particular type of relationship.
Steyn,
Die uitleg van Wette
39
cites a passages from the speech of lord Hobhouse in
Barker v
Edger
40
[reproduced in
R v Gwantshu
]:
41
‘
'The general maxim is "Generalia specialibus non derogant."
When the Legislature has given its attention to a separate
subject,
and made provision for it, the presumption is that a subsequent
general enactment is not intended to interfere with the
special
provision unless it manifests that intention very clearly. Each
enactment must be construed in that respect according to
its own
subject-matter and its own terms.'
Maxwell on Interpretation of Statutes
12 ed by P St J Langan
cites a passage from
The Vera Cruz
42
where Lord Selborne said:
“Now if anything be certain it is this, that where there are
general words in a later Act capable of reasonable and sensible
application without extending them to subjects specially dealt with
by earlier legislation, you are not to hold that earlier and
special
legislation indirectly repealed, altered, or derogated from merely by
force of such general words, without any indication
of a particular
intention to do so.’
[29] PAJA was enacted against the background of a provision in the
LRA conferring exclusive jurisdiction on the labour court ‘in
respect of all matters that elsewhere or terms of this Act or in
terms of any other law are to be determined by the Labour Court.’
43
That provision applies also to public sector employees unless the
rather special circumstances set out in ss (2) of s 157 confer
concurrent jurisdiction on the labour and the high courts. By
extending the benefits of the LRA to, and imposing its restrictions
on, employees of the state and its organs the legislature, for them
also, took dismissals out of the realm of administrative law.
It
would thus seem perverse that PAJA should, in respect of those
matters specially assigned to the labour court, and without expressly
saying so, effectively have repealed the exclusive jurisdiction
provision of the LRA in respect of public sector employees.
[30] What I have said above applies only to matters such as a
dismissal based on conduct, capacity or operational requirements that
are to be determined by the labour court. Not all issues arising from
an employment relationship are governed by the LRA. The jurisdiction
of the Labour Court is limited to the four corners of the LRA.
44
A cause of action falling outside that for which the legislature has
prescribed recourse to the labour court as the only remedy,
is not
taken away by the LRA.
Fedlife Assurance Ltd v Wolfaardt
45
held just that. It was held that an employee’s common law claim
for damages for breach of a fixed term contract fell outside
the
scope of the LRA. Since the LRA did not mean to abolish Mr
Wolfaardt's claim, he was free to pursue it in another court. There
are many other decisions establishing that a litigant may very well
have more than one cause of action, one justiciable in the labour
court and another or others in the high court. The situation has
arisen particularly in the strike context.
46
Troublesome questions about whether administrative action might be
challenged under PAJA will continue to arise. I am merely suggesting
that for a complaint arising from a procedurally unfair dismissal for
poor work performance, a quintessential LRA matter, relief
under PAJA
is not intended to be available.
[31] The Bill of Rights creates two distinct sources of power.
Natural justice is a philosophical cornerstone of both but they are
nevertheless distinct. The one, in s 23 of the Constitution, feeds
the procedures of the labour law, the other, in s 33, those of
the
administrative law. Administrative power over the subject has one
source, an employer’s power over its employees another.
The
statutes enacted to give effect to each of the constitutional
provisions, PAJA and the LRA, differ fundamentally in the substantive
remedies they provide. If an application for the review of
administrative action succeeds, the applicant is usually entitled to
no
more than a setting aside of the impugned decision and its
remittal to the decision-maker to apply his mind afresh. Except where
unreasonableness is an issue the reviewing court does not concern
itself with the substance of the applicant’s case and only
in
rare cases substitutes its decision for that of the decision-maker.
47
The guiding principle is that the subject is entitled to a
procedurally fair and lawful decision, not to a correct one. Under
the
LRA the procedure to have a dismissal overturned or adjusted
involves a rehearing with evidence by the parties and the
substitution
of a correct decision for an incorrect one. The scope
for relief consequent upon such an order is extensive. It is quite
unlike that
afforded by an administrative law review.
48
[32] One might say, as my brother Cameron does, that an employee who
is content with the lesser remedy afforded by PAJA should be
free to
pursue it, but that opinion in my respectful view does not take
adequate account of the fact that the legislature has firmly
set its
face against matters governed by the LRA being litigated in another
court regardless of whether the employee is employed
in the public or
the private sector.
[33] In starting out on this judgment I said that the issues are of
mystifying complexity.
49
If I am wrong in thinking that the respondent has no cause of action
under PAJA and she indeed has a remedy under that Act or even
under
the common law, I consider that she is not entitled to pursue it in
the high court.
[34] The jurisdiction provision in s 157(1) of the LRA confers on the
labour court ‘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.’
The phrase ‘elsewhere in terms of this Act’ means in a
section of the Act other than s 157. The very next section, s158,
confers powers on the labour court, not jurisdiction. However, I tend
to agree with Brassey in
Commentary on the
Labour Relations Act
vol
3 A7-116 who
suggests that at least some paragraphs of
s
158(1)
by implication extend the jurisdiction of the labour court.
Clearly not all the paragraphs of that subsection do so, but
paragraph
(h), it seems to me, does. Under that paragraph the labour
court may ‘review any decision taken or any act performed by
the
State in its capacity as employer, on such grounds as are
permissible in law.’
[35] The fact that it was thought necessary to make special provision
for a review of state decisions in the employment sphere on
any
grounds permissible in law suggests an extension of jurisdiction to
bring the kind of employment-related decision that might
be
considered to fall outside the scope of the LRA – an
administrative decision under PAJA or under the common law for
example
– under the exclusive jurisdiction of the labour court.
In his customary limpid fashion Brassey makes the following comment:
50
‘The state as employer inhabits two legal worlds: contract law
and administrative law. Courts have wrestled how best to characterise
and deal with its acts in this capacity. In a line of important cases
in our law the decision was made to treat the state
qua
employer as an administrative actor and, as a result, to require it
to conform to the rules of natural justice before taking a decision
that might deprive employees of their rights or frustrate their
legitimate expectations.’
51
[36] I do not think that it attributes too much insight to the
framers of the Act to suppose that they had the
Zenzile
line
of cases in mind when formulating s 158(1)(h). If I am correct in
this, the labour court has exclusive jurisdiction to review
the
decision to dismiss the respondent so that, although she has a cause
of action under PAJA, the high court is not the forum for
it.
[37] It was common cause before us that if the respondent had an
action directly under the Constitution she could enforce it in the
high court. Did she have one?
NAPTOSA and Others v Minister of
Education, Western Cape, and Others
52
held
that it is impermissible 'for an applicant, save by
attacking the constitutionality of [a statute], to go beyond the
regulatory framework
which it establishes.' In
NEHAWU v University
of Cape Town and Others
53
the Constitutional Court distinguished the decision.
Ingledew v
The Financial Services Board and Others: in re Financial Services
Board v Van der Merwe and Another
54
may be said to have given some support to the notion but the
court ultimately found it unnecessary to decide the issue.
[38] Since
Ingledew
,
stronger endorsement has come from the Constitutional Court.
Chaskalson CJ, writing for certain members of the court, held in
Minister of Health and another NO v New Clicks
South Africa (Pty) Ltd and others
55
that –
'A litigant cannot avoid the provisions of PAJA by going
behind it, and seeking to rely on section 33(1) of the Constitution
or the
common law. That would defeat the purpose of the Constitution
in requiring the rights contained in section 33 to be given effect
by
means of national legislation.'
Having remarked at para 436 that there was ‘considerable
force’ in the NAPTOSA approach Chaskalson CJ continued at para
437:
'Where, as here, the Constitution required
Parliament to enact legislation to give effect to the constitutional
right guaranteed in
the Constitution, and Parliament enacts such
legislation, it will ordinarily be impermissible for a litigant to
found a cause of
action directly on the Constitution without alleging
that the statute in question is deficient in the remedies that it
provides.
Legislation enacted by Parliament to give effect to a
constitutional right ought not to be ignored. And where a litigant
founds a
cause of action on such legislation, it is equally
impermissible for a court to bypass the legislation and to decide the
matter on
the basis of the constitutional provision that is being
given effect to by the legislation in question
.'
56
[39] The development has continued with Mokgoro J remarking in D
u
Toit v Minister of Transport
57
that the difficulty in the applicant’s case was that he had not
impugned the validity of a statutory provision before seeking
to
place reliance on the Constitution.
[40] The remarks by Chaskalson CJ accord
with the golden rule first stated in
S v
Mhlungu and Others
58
and since repeatedly enunciated by the Constitutional Court, most
recently in
Motsepe v Commissioner for Inland
Revenue
59
that if it is possible to decide a case without reaching a
constitutional issue, that is the course that should be followed.
Motsepe
was distinquished in
Harksen v Lane NO and
Others,
60
Goldstone J remarking
61
that the applicant had no non-constitutional remedies available to
her. The point here is that where a statute affords a direct remedy
it is unnecessary and inappropriate to go directly to a
constitutional provision.
[41] The situation with regard to the
common law is no different. If it is unable to meet the exigencies of
a case, it may be developed
in the light of the Constitution; as
illustrated by
Fourie and Another v Minister
of Home Affairs and Others,
62
that development can be extensive. That is the way the Constitution
should be applied, by shaping our system of law, not by affording
direct reliance on it except in exceptional circumstances such as
those in
Harksen
where
there was no non-constitutional remedy.
63
[42] In
Institute for Democracy in South Africa and others v
African National Congress and others
64
Griesel J dealt with this issue by relying on what was said in
NAPTOSA and by quoting approvingly from the work of Currie and
Klaaren
,
The Promotion of Access to
Information Act Commentary
(2002)
para 2.12. The same views are expressed by the authors on PAJA in
their work
The Promotion of
Administrative Justice Benchbook
2001
para 1.28:
'It was argued in the previous paragraph that
there remains, after the AJA [PAJA] has commenced a
free
standing constitutional right to administrative justice.
The question is therefore not
whether
but
when
the constitutional right to administrative justice can be directly
relied on. The answer must be – only in the exceptional
case
where a provision of the AJA or other parliamentary legislation is
challenged as an infringement of s 33. This would be in accordance
with the principle of avoidance, which dictates that remedies should
be found in common law or legislation before resorting to
constitutional
remedies. This would also be in accordance with the
related principle that norms of greater specificity should be relied
on before
resorting to norms of greater abstraction. Most
compellingly, however, deference must be given to the constitutional
authority of
Parliament to give effect to the constitutional right to
administrative justice. This means that the Act must be treated as
the principal
instrument defining and delineating the scope and
content of the administrative justice rights, the mechanisms and
procedures for
their enforcement. The Constitutional right recedes to
the background, indirectly informing the interpretation of the Act
but directly
applicable only to an allegation that the AJA or
legislation beyond the control of the AJA is unconstitutional.'
Cora Hoexter
The
New Constitutional & Administrative Law
65
voices the same opinion in regard to the Promotion of Access to
Information Act.
[43] Recently, Botha J agreed in
Jones and another v Telkom SA Ltd
& others
66
with
Mgijima v Eastern Cape Appropriate Technology Unit and
another
67
that a claimant cannot escape the provisions of the LRA by
alleging that the case involves a constitutional issue.
68
I agree. Every labour dispute can be said to have a constitutional
dimension. That does not mean that the constitutional right to
fair
labour practices of someone who has been unfairly dismissed has been
violated. It means that the dismissal is unlawful in terms
of the
LRA. The labour court retains its exclusive jurisdiction. However,
the point was not argued and I need say n
o more
about it.
[44] The respondent’s reliance on
PAJA was misplaced. Insofar as she may have had a claim under PAJA,
she chose the wrong forum
to enforce it. Also misplaced was her
alternative attempt to found a cause of action directly on s 33 of
the Bill of Rights. I agree
with my brother Mthiyane that s 195 of
the Constitution does not afford the respondent discrete relief.
69
It follows that I agree that the appeal should succeed and that the
order proposed should be substituted for that in the lower court.
J H CONRADIE
JUDGE OF APPEAL
[45] The appeal raises the difficult question whether public
employees can challenge dismissal proceedings against them, arising
from their employment, in the ordinary courts. Ms Chirwa, the
employee, was dismissed by Transnet (an organ of State),
70
and chose to bring proceedings against it in the high court, where
she sought (a) to set aside the procedure that resulted in her
dismissal (claiming it was flawed because her immediate supervisor
and chief critic presided), and consequently (b) reinstatement.
Brassey AJ granted her the relief she sought, even though her cause
of action arose from a dismissal as defined in the Labour Relations
Act 66 of 1995 (the LRA).
[46] I am grateful to my colleagues Mthiyane JA and Conradie JA for
the benefit of their judgments. In addition, two deeply considered
judgments at first instance, going opposite ways (Murphy AJ
71
and Plasket J),
72
have lighted the way. After hesitation I find myself driven to a
different conclusion from my colleagues, and to endorse that of
Plasket J. In my view, Transnet’s appeal should substantially
fail. While I differ from the approach of Brassey AJ in the court
a
quo (who eschewed the Promotion of Administrative Justice Act 3 of
2000 (PAJA) and gave the employee a common law remedy), I agree
with
his main conclusion that the employee was entitled to relief.
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, so that Transnet’s
appeal should only partly succeed.
[47] The essence of my difference with my colleagues Mthiyane and
Conradie is that I think the Constitution permits an employee of
a
public body to seek relief in the ordinary courts for
dismissal-related process injustices that constitute administrative
action.
And I consider that too many conceptual, doctrinal and
interpretative difficulties obstruct the path to the conclusion they
both
reach, which is that the employee was not entitled to any relief
in the ordinary courts. In my view these difficulties compel the
contrary conclusion. However, in my view the ordinary courts should
be careful in employment-related matters not to usurp the remedial
role and special aptitudes of the labour courts: public employees may
properly be discouraged from having recourse to the ordinary
courts
in such matters by limiting the remedy granted.
[48] Mthiyane JA considers that the ordinary courts have jurisdiction
to entertain the employee’s claim, but that her dismissal
did
not constitute ‘administrative action’ under PAJA, since
her employment contract with Transnet (and therefore its
termination)
lacked a public law character. Conradie JA likewise accepts that the
ordinary courts have jurisdiction, but, unlike
Mthiyane JA, is
willing to accept that the dismissal constituted ‘administrative
action’ on the part of Transnet. He
finds however that the
employee nevertheless had no cause of action under PAJA that was
cognisable in the ordinary courts. The difference
between my
colleagues is that Mthiyane JA denies the employee a remedy without
relying on the provisions of the LRA, because he finds
that the
dismissal process was not administrative action; whereas Conradie JA
finds that the legislative intent behind the enactment
of the LRA
entails the disappearance of the employee’s administrative
action-related cause of action in the ordinary courts.
I respectfully
dissent from both approaches and their conclusion.
[49] We must start, as always, with the Constitution, which regulates
the exercise of all power, and entitles all persons not only
to fair
labour practices (as enacted in the LRA),
73
but also to just administrative action (the right to which is now
embodied in PAJA).
74
The problem the employee’s claim presents may be considered in
two stages. If there were no LRA, would the employee be able
to bring
her claim under PAJA? Though my colleague Mthiyane says No, I
conclude that she can. Second, does the LRA obstruct that
conclusion?
Though my colleague Conradie JA says Yes, I conclude that it does
not.
Does an organ of state when dismissing an employee engage in
‘administrative action’?
[50] Since Transnet conceded that it is an organ of state under the
Constitution, the question is whether its decision to dismiss
falls
within PAJA’s definition of administrative action, which
(subject to exclusions) encompasses decisions taken by organs
of
state ‘when exercising a public power or performing a public
function in terms of any legislation’. The answer to
the
question is not affected by the fact that Transnet is now a
profit-directed commercial entity operating on market principles:
we
must decide it as if Ms Chirwa were employed by any other organ of
state, or indeed a state department.
75
[51] It is hard to see why the decision of a state organ to dismiss
an employee does not constitute administrative action. Indeed,
as a
matter of doctrine, this court more than a decade and a half ago so
held. In
Administrator, Transvaal v Zenzile
76
it unequivocally rejected the argument that a public body’s
decision to dismiss falls beyond the reach of administrative law
and
the rules of natural justice. It held that it was ‘logically
unsound and wrong in principle’ to postulate that
administrative
law principles have no application to ‘purely
contractual relations’: rather, it held, the existence of a
contract cannot
alter the essential nature of the parties’
relations.
77
This court therefore affirmed that when public bodies dismiss
employees, one is concerned –
‘
not with mere employment under a contract of
service between two private individuals, but with a form of
employment which invests
the employee with a particular status which
the law will protect. Here the employer and decisionmaker is a public
authority whose
decision to dismiss involved the exercise of a public
power. The element of public service injected by the statute
necessarily entails,
so I consider, that the [employees] were
entitled to the benefit of the application of the principles of
natural justice …’
78
[52] Despite the allusion to ‘the statute’, it is in my
view of no significance that the employee’s contract of
employment, or Transnet’s authority to employ her, did not
derive from a particular, discernible, statutory provision. Transnet
is a public entity created by legislation and operating under
statutory authority. It would not exist without statute. Its every
act derives from its public, statutory character, including the
dismissal at issue here. The doctrine propounded in
Zenzile
,
and the cases that followed it, was that employment with a public
body attracts the protections of natural justice because the employer
is a public authority whose employment-related decisions involve the
exercise of public power. That power is always sourced in statutory
provision, whether general or specific, and, behind it, in the
Constitution. Its exercise therefore constitutes administrative
action.
That reasoning is as compelling today as it was a decade and
a half ago.
[53]
Zenzile
pre-dated both the Constitution and PAJA, but far
from superseding it, they seem to me merely to have confirmed its
authority. This
court has recently observed, in the light of the
constitutional right to administrative justice, its embodiment in
PAJA, and Constitutional
Court decisions, that administrative action
is, in general terms, the conduct of the bureaucracy in carrying out
the daily functions
of the State (which here includes Transnet),
which necessarily involves the application of policy, usually after
its translation
into law, with direct and immediate consequences for
individuals or groups of individuals.
79
Rejecting an argument that a policy-based decision to rent out state
property did not constitute administrative action, Nugent JA
observed
that the decision was made ‘in the exercise of a public power
conferred by legislation, in the ordinary course of
administering the
property of the State, and with immediate and direct legal
consequences’.
80
The same approach applies here. The decision to dismiss the employee
was made in the exercise of public power, conferred by legislation,
in the ordinary course of administering the business of Transnet
(and, through it, the State), and had immediate and direct legal
consequences. It was therefore administrative action under PAJA.
[54]
Zenzile
was distinguished in
Cape Metropolitan Council
v Metro Inspection Services CC
,
81
which refused to generalise its doctrine by extending it to cases of
purely commercial cancellation by a public body that had contracted
with a large enterprise on terms of equal bargaining power.
Cape
Metro
left the core doctrine of
Zenzile
intact, which is
that in terminating a contract of employment a public body engages in
administrative action. The reason emerges
from
Cape Metro
itself, which observed that the public body there in concluding the
contract was not acting ‘from a position of superiority
or
authority by virtue of its being a public authority and, in respect
of the cancellation, did not, by virtue of being a public
authority,
find itself in a stronger position than the position it would have
been in had it been a private institution’.
82
While the principles of labour law recognise that contracts of
employment are not universally concluded on terms of inherent
hierarchical
subordination, Transnet rightly did not seek to
establish that exception here: for though Ms Chirwa was in a senior
position, in
taking up her job she was clearly no more than a private
citizen contracting with a public colossus.
83
[55] And
Cape Metro
was itself distinguished in
Logbro
Properties CC v Bedderson NO
,
84
which held that the former decision ‘turned on its own facts’.
These showed that a public authority’s invocation
of a power of
cancellation in a contract concluded on equal terms with a major
commercial undertaking, without any element of superiority
or
authority deriving from its public position, does not amount to an
exercise of public power.
Logbro
reasserted the general
principle: where a public body is empowered by statute to contract,
the principles of administrative justice
frame the parties’
contractual relationship, and, in particular, they govern the public
body’s exercise of the rights
it derives from the contract.
That applies to the employment contract here.
[56] But the authority of
Zenzile
does not turn on the
minutiae of precedent and on whether it can plausibly be
distinguished. For underlying it is a large principle,
namely that
employment with a state organ triggers a public dimension that
imposes public duties that the courts will supervise.
As has been
observed,
‘
Whether one’s view of administrative law is
that it should control government power and protect individual
rights, or that it
should ensure accountability and foster
participation, the power that the state exerts in the relationship
with its employees, at
times as an instrument of public policy and
with potentially devastating effects on their lives, is an
appropriate subject for administrative
law control.’
85
This in my respectful view applies to Transnet, and it necessitates
the conclusion that, whatever the position might be in relation
to
purely commercial contracts, the public dimension of employment
service with a public body renders it subject to administrative
law
oversight (and hence within the definitional reach of PAJA).
86
Does the enactment of the LRA deprive the employee of her
administrative justice cause of action?
[57] When Transnet dismissed Ms Chirwa, its action trenched on two
constitutional rights: her right to fair labour practices,
87
and her right to just administrative action.
88
The legislature has augmented the right to fair labour practices by
affording employees an elaborate set of remedies in the LRA.
When
conciliation under the LRA failed, she could have subjected her
unfair dismissal claim to arbitration under the auspices of
the
Commission for Conciliation, Mediation and Arbitration (CCMA) (LRA ss
133-150). She chose not to. Instead, she launched this
application
for relief in express reliance on PAJA, asserting that two causes of
action arose from her dismissal – one under
the LRA; the other
under the Constitution and PAJA. That assertion was in my view right.
[58] Does the fact that the employee has remedies under the LRA
preclude her from asking the ordinary courts to vindicate her PAJA
rights? In my respectful view, it does not. Both existing authority
and principle in my view compel the conclusion that she is entitled
to bring her claim for relief in the ordinary courts.
[59] It is by now well established that the LRA does not confer
exclusive jurisdiction on the labour courts in matters arising from
the employer/employee relationship – it was intended to
supplement the employee’s common law rights, and not to exhaust
the rights and remedies accruing to an employee on termination of
employment:
Fedlife Assurance Ltd v Wolfaardt
.
89
And since the LRA affords the labour courts no general jurisdiction
in employment matters, the ordinary courts’ jurisdiction
is not
ousted simply because a dispute falls within the sphere of employment
relations; they retain their competence in relation
to disputes
arising from the alleged infringement of constitutional rights:
Fredericks v MEC for Education and Training, Eastern Cape
.
90
[60] These principles were recently applied in
United National
Public Servants Association of SA v Digomo NO
,
91
where this court held that public servants who claimed to have been
irregularly and unfairly passed over for promotion (a pure employment
claim) could challenge the adverse decision in the ordinary courts.
Applying
Fedlife
and
Fredericks
, this court reasserted
that the LRA’s remedies are not exhaustive of those that might
be available to employees arising from
their employment:
‘
Particular conduct by an employer might
constitute both an “unfair labour practice” (against
which the Act provides a
specific remedy) and it also might give rise
to other rights of action. The appellant’s claim in the present
case was not that
the conduct complained of constituted an “unfair
labour practice” giving rise to the remedies provided for by
the
Labour Relations Act, but
that it constituted administrative
action that was unreasonable, unlawful and procedurally unfair. Its
claim was to enforce the right
of its members to fair administrative
action – a right that has its source in the Constitution and
that is protected by s 33
– which is clearly cognizable in the
ordinary courts.’
This court was not called on to decide whether the conduct in issue
was indeed administrative action liable to be set aside:
‘
It is sufficient to say that the appellant’s
claim as formulated in its application did not purport to be one that
falls within
the exclusive jurisdiction of the labour courts’.
[61] The present claim is no different. The employee was entitled to
formulate her complaint against her public employer in terms
cognizable in the ordinary courts. By invoking PAJA, she did so. Why
should she not be able to claim relief? My colleague Conradie
finds
an answer in the structure and comprehensive reach of the LRA, which
he concludes entails that all dismissal procedures, whatever
their
characteristics, be dealt with under the LRA. With respect, I cannot
agree. That approach suggests that the LRA – a statute
that
preceded PAJA – must be read to have deprived the employee of
her administrative justice rights of action. It does not
do so
expressly. So it must have done so by implication. With respect, I
flinch to draw so large a conclusion from such obliquely
inferred
grounds.
[62] And behind this debate looms the broader question whether, when
the legislature provides an express statutory vehicle for the
realisation of one constitutional right, it thereby occludes reliance
on other rights whose breach may be involved. To do so may
indeed lie
within its power, but it would in my view have to use far clearer,
more precise and robust language to achieve that object:
for the
evaporation of a constitutional cause of action should be inferred
only with great hesitation.
[63] So far as I know, no doctrine of constitutional law confines a
beneficiary of more than one right to only one remedy, even where
a
statute provides a remedy of great amplitude. If the legislature
sought to deprive dismissed public employees of their administrative
justice cause of action in the ordinary courts, because they enjoy
rights under the LRA, it could have said so when it enacted PAJA.
Far
from doing so, PAJA’s extensive list of exclusions from the
definition of ‘administrative action’ refrains
from any
such mention. That cannot but be a telling feature. It follows in my
view that their cause of action survives unscathed.
[64] Nor am I able to read into s 158(2)(h) of the LRA the
exclusionary effect Conradie JA ascribes to it. The provision seems
to
me with respect merely to give the labour courts power to review
the State’s conduct as employer, without the intention to
confer exclusivity.
[65] We must end where we began: with the Constitution. I can find in
it no suggestion that, where more than one right may be in
issue, its
beneficiaries should be confined to a single legislatively created
scheme of rights. I can find in it no intention to
prefer one
legislative embodiment of a protected right over another; nor any
preferent entrenchment of rights or of the legislation
springing from
them.
92
Ms Chirwa was free to frame her cause of action under PAJA, as she
did: what relief she should have been afforded I turn to in
conclusion.
Relief
[66] Transnet sought only faintly to contend that the process by
which Ms Chirwa was dismissed could be considered fair. It was not,
since she had at least a reasonable suspicion that her superior, with
whom relations had been overtly acrimonious, would be biased
against
her (PAJA s 6(2)(a)(iii)). The decision must therefore be set aside.
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. It may be that an immaculate
process concludes that the employee should have been
dismissed when
she was. In that case, reinstatement would be quite wrong. If on the
other hand a fair hearing concludes that she
should not have been
dismissed, then she must in my view be left to prove what loss she
can in respect of the intervening period.
[67] The employee’s insistence on approaching the ordinary
courts – when the LRA afforded her ample remedies, including
retrospective reinstatement and compensation if her employer failed
to discharge the burden of proving that her dismissal was both
procedurally and substantively fair – is not without
consequence: the 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.
[68] I would therefore allow the appeal to the extent that the order
reinstating the employee is set aside. Otherwise I would dismiss
it.
That entails only limited success for Transnet, and in my view each
party should pay its own costs in this court. As for the
costs in
the court below, the main focus of the parties’ dispute from
the outset was whether the employee was entitled to any
relief at
all. Since Ms Chirwa established that she indeed was, she should get
her costs in the court below.
E CAMERON
JUDGE OF APPEAL
CONCUR:
MPATI DP
1
[1997] 8 BLLR 965
(LAC) at 976E.
2
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
3
1991 (1) SA 21
(A).
4
[1992] ZASCA 115
;
1992 (4) SA 532
(A) at 536 G-I.
5
[2000] ZASCA 151
;
2001 (1) SA 853
(SCA) at 866.
6
See s 157(2) of the LRA.
7
[2001] ZACC 6
;
2002 (2) SA 693
(CC) at para 31 and 40.
8
2002 (1) SA 49
(SCA).
9
(
2005) 26 ILJ 1957 (SCA) at para 4.
10
[2001] 1 All SA 567
(Tk) at para 17.
11
2006 (1) BCLR 1
(CC) at para 431.
12
2005 (3) SA 589
(CC) at paras 99 to 101.
13
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para 41, 44.
14
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 22.
15
2000 (1) SA 1
(CC) at para 41.
16
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) para 24. The case was
decided on the basis that the appellants had failed to show that any
of their rights had been adversely
affected by the Minister’s
decision taken in the exercise of his power to dispose of or lease
state property.
17
2001 (3) SA 1013
(SCA).
18
Cape Metro
at
para 16.
19
Op cit at para 17.
20
1975 (3) SA 569
(A).
21
Zenzile
at
33J-34H;
Sibiya
at 534 E-F;
Manzene
at
1206-7.
22
[1992] ZASCA 115
;
1992 (4) SA 532
(A).
23
(1993) 14 ILJ 1205 (A).
24
Zenzile
at
26C-E. The termination of the employees’ contract of
employment was governed by the Public Service Staff Code which was
promulgated in terms of s 36 of the Provincial Government Act 69 of
1986 ( rw s 140) the Public Service Act 111 of 1984. The contract
could not be terminated without notice. It follows therefore that
the audi rule was embodied in their employee’s conditions
of
employment.
25
Smit v Workmen’s Compensation
Commissioner
1979 (1) SA 51
(A) at
56F.
26
Lamprecht v McNeillie
(1994) 15 ILJ 998 (A) at 1000 A-H.
27
2004 (4) SA 481
(SCA) at para 161, 2 at paras
13-16.
28
(2005) 26 ILJ 1957 (SCA).
29
At para 5 Nugent JA said that ‘It is sufficient to say that
the appellant’s claim
as formulated in its application
(my emphasis) did not purport to be one falling within the exclusive
jurisdiction of the labour courts and the objection to the
jurisdiction of the High Court ought to have been dismissed.’
30
Cf
Independent
Municipal and Allied Trade Union v Northern Pretoria Metropolitan
Substructure & Others
1999 (2) SA
234
(T) and
Mgijima v Eastern Cape
Appropriate Technology Unit and another
2000 (2) SA 291
(TkH);
Mbayeka and
another v MEC for Welfare, Eastern Cape
2001 (4) BCLR 374
(Tk)
[2001] 1 All SA 567
(Tk).
31
1991 (1) SA 21
(A).
32
Notably,
Administrator, Natal, and another v
Sibiya and another
[1992] ZASCA 115
;
1992 (4) SA 532
(A).
33
By virtue of the definition in s 239 of the
Constitution, an organ of State includes an administration in the
provincial sphere
of government. It also includes an institution
like Transnet exercising a public power or performing a public
function in terms
of any legislation:
Rail
Commuters Action Group & others v Transnet Ltd
t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at para 67;
[2004] ZACC 20
;
2005 (4) BCLR 301
(CC).
34
Favouring the view that a public sector dismissal
is (also) an administrative act that escapes the (exclusive)
jurisdiction of the
labour court is
Police
and Prisons Civil Rights Union & Others v Minister of
Correctional Services & Others
(case 603/05 Eastern Cape High Court delivered 12 January 2006,
para 59 – 60;
Mbayeka &
another v MEC for Welfare, Eastern Cape
[2001] 1 All SA 567
(Tk);
Simelela and
Others v MEC for Education, Eastern Cape & Another
[2001] BLLR 1085
(LC) (where the dicta at paras 57 & 58 may be
said to have been
obiter
).
35
(2005) 26 ILJ 2403 (LC) at para 54.
36
(2004) 25 ILJ 1750 (LC) at para 12 and 13.
37
Police and Prisons Civil Rights Union and others v Minister of
Correctional Services and others
[2006] 2 All SA 175
(E) para
59.
38
Per Murphy AJ at para 55 and 62 of
SA National Police Union:
'
. .
. there are important underlying substantive principles or policy
concerns at play here, namely that the resolution of employment
disputes in the public sector should be accomplished by identical
mechanisms and in accordance with the same values as in the private
sector: that is, through collective bargaining and the adjudication
of unfair labour practices, as opposed to judicial review of
administrative action. And additionally that our constitutional
prescriptions in that regard ought to be consistently maintained
. .
. .There seems to me to be no logical, legitimate or justifiable
basis upon which to categorize all employment conduct in the
public
sector as administrative action, if only because of the principle of
equality, and especially in the light of the express
provisions of
the definition of administrative action in PAJA.' These sentiments
were shared by Mbha J who declared in
Louw v SA Rail Commuter
Corporation & another
(2005) 26 ILJ 1960 (W) that the right
entrenched in s 23 of the Constitution obviously regulates the
powers of dismissal of employees,
so that the remedies for any
unfair dismissal would be under the fundamental right to fair labour
practices as opposed to the fundamental
right to fair adm
inistrative
action.
39
4 ed p 190.
40
[1898] AC 748
at 754.
41
1931 EDL 31.
42
(1884) 10 App. Cas. 59 at 68.
43
Subsections (1) and (2) of
Section 157
of the
Labour Relations Act are
quoted in para 6 of my brother Mthiyane’s
judgment.
44
Fredericks & Others v MEC for Education
and Training, Eastern Cape, & Others
[2001] ZACC 6
;
2002 (2) SA 693
at para 31.
45
2002 (1) SA 49
(SCA).
46
A high court has jurisdiction to award damages for injury to
property during a protest action:
Eskom Ltd v National Union of
Mineworkers
(2001) 22 ILJ 618 (W);
Minister of Correctional
Services and Another v Ngubo and Others
2000 (2) SA 668
(N);
(2000) 21 ILJ 313 (N) decided that the high court could grant an
interdict against assaults by employees on a co-employee.
47
The court
a quo
,
exceptionally for a court exercising review powers, instead of
merely setting aside the decision and remitting the matter, granted
the respondent the substantive relief of nine months’
retrospective reinstatement. See
s 8(
c
)(ii)(
aa
)
of PAJA.
48
Under the LRA the respondent would have had to
go to a bargaining council, if there was one, or otherwise to the
Council for Conciliation,
Mediation and Arbitration, the CCMA, to
have the dispute conciliated and, if it remained unresolved, have it
determined by arbitration.
For a fuller exposition see
Independent
Municipal and Allied Trade Union v Northern Pretoria Metropolitan
Substructure & Others
1999 (2) SA
234
(T) at 239.
49
One thinks with empathy of Zondo JP’s lament in
Langeveldt
v Vryburg Transitional Local Council
(2001) 22 ILJ 116 (LAC).
Things have not become any easier since then.
50
Commentary on the
Labour Relations Act vol
3 A7-149.
51
The
Zenzile
line of cases. .
52
2001 (2) SA 112
(C);
2001 (4) BCLR 388
(CC) at
para 61.
53
2003 (3) SA 1
(CC) para 17 ; 2003(2) BCLR 154 (CC)
.
54
[2003] ZACC 8
;
2003 (4) SA 584
(CC) para 23 - 24
[2003] ZACC 8
; ;
2003 (8) BCLR 825
(CC).
55
2006 (2) SA 311
(CC) at para 96;
2006 (1) BCLR 1
(CC).
56
Footnote omitted.
57
2006 (1) SA 311
(CC)
at para 29
.
58
[1995] ZACC 4
;
1995 (3) SA 867
(CC).
59
[1997] ZACC 3
;
1997 (2) SA 898
(CC) at para 21.
60
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (1) BCLR 1489
(CC)
61
At para 26.
62
2005 (3) SA 429
(SCA);
2005 (3) BCLR 241
(SCA)
63
Van Niekerk v Pretoria City Council
1997 (3) SA 839
(T) was decided before the enactment of PAJA: at the
time the applicant had no non-constitutional remedy.
64
2005 (5) SA 39
(C) para 16.
65
Vol 2 at 57
66
[2006] BLLR 513
(T)
67
2000 (2) SA 291
(TkH).
68
See also
Mcosini v Mancotywa
(1998) 19 ILJ 1413(Tk).
69
Minister of Home Affairs v National Institute for Crime
Prevention and the Reintegration of Offenders (NICRO) and Others
[2004] ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5) BCLR 445
para 21.
70
Constitution s 239 (‘organ of state’,
besides departments of state, includes any other functionary or
institution ‘exercising
a public power or performing a public
function in terms of any legislation’ (not including courts or
judicial officers)).
71
SA Police Union v Commissioner of the SAPS
(2005) 26
ILJ
2403 (LC) (where a change in shifts was in issue) (the Constitution
draws an explicit distinction between administrative action
and
labour practices as two distinct species of juridical acts, and
subjects them to different forms of regulation, review and
enforcement; employment-related decisions by an organ of state do
not constitute administrative action under PAJA);
72
Police and Prisons Civil Rights Union v Minister of Correctional
Services
[2006] 2 All SA 175
(E) (where dismissals were at
issue) (an organ of state in exercising the power to dismiss engages
in administrative action under
PAJA cognisable in the high courts).
73
See
NAPTOSA v Minister of Education, Western Cape
2001 (2) SA
112
(C) 123I-J (endorsed by Chaskalson CJ for some members of the
court in
Minister of Health v New Clicks SA (Pty) Ltd
2006
(2) SA 311
(CC) paras 436-7 and 95).
74
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
para 25, per O’Regan J on behalf of the Court;
Minister
of Health v New Clicks SA (Pty) Ltd
2006 (2)
SA 311
(CC) para 95, per Chaskalson CJ; paras 433-7 per Ngcobo J.
75
Transnet in its written argument suggested, on the basis of its
statutory history as set out in
Industrial Council for the
Building Industry (Western Province) v Transnet Industrial Council
[1998] ZASCA 60
;
1999 (1) SA 505
(SCA) at 511B-H, that the fact that the LRA was made
statutorily applicable to its employees somehow rendered them
ordinary employees
in a class different from other state employees,
but the contention was rightly not pursued in oral argument.
76
1991 (1) SA 21
(A).
77
1991 (1) SA 21
(A) 35I-J.
78
1991 (1) SA 21
(A) 34B-D, per Hoexter JA on behalf of the court.
79
Grey’s Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) para 24, per Nugent JA on behalf of the court.
80
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) para 28.
81
2001 (3) SA 1013
(SCA) para 11.
82
2001 (3) SA 1013
(SCA) para 18, per Streicher JA on behalf of the
court.
83
See generally Angus Stewart ‘The Characteristics of the State
as Employer: Implications for Labour Law’ (1995) 16
ILJ
15.
84
2003 (2) SA 460
(SCA) paras 9-14.
85
Angus Stewart ‘The Characteristics of the State as Employer:
Implications for Labour Law’ (1995) 16
ILJ
15 at 23.
86
It follows that I am unable to agree with the view of Murphy AJ in
SA Police Union v Commissioner of the SAPS
(2005) 26
ILJ
2403 (LC) paras 51, 57 that there is ‘nothing inherently
public’ about a public employer’s action in changing
terms and conditions of employment since it amounts to ‘an
internal matter of departmental organisation’.
87
Bill of Rights s 23(1): ‘Everyone has the right to fair labour
practices.’
88
Bill of Rights s 33(1): ‘Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair’,
now embodied by virtue of s 33(3) (‘National
legislation must be enacted to give effect to these rights’)
in PAJA.
89
2002 (1) SA 49
(SCA), para 25per Nugent AJA for the majority.
90
[2001] ZACC 6
;
2002 (2) SA 693
(CC) paras 36-43, per O’Regan J on behalf of
the court.
91
(2005) 26
ILJ
1957 (SCA)
92
What Plasket J – in my respectful view, correctly –
rejects as ‘the pre-eminence argument’:
Police and
Prisons Civil Rights Union v Minister of Correctional Services
[2006] 2 All SA 175
(E) para 59.