Legal Aid Board v Jordaan (228/06) [2006] ZASCA 129; 2007 (3) SA 327 (SCA); (2007) 28 ILJ 825 (SCA) (30 November 2006)

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[2006] ZASCA 129
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Legal Aid Board v Jordaan (228/06) [2006] ZASCA 129; 2007 (3) SA 327 (SCA); (2007) 28 ILJ 825 (SCA) (30 November 2006)

REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
Case number: 228/06
Reportable
In the matter between:
LEGAL AID BOARD
APPELLANT
and
GERTRUIDA CECILIA JORDAAN
RESPONDENT
CORAM
: FARLAM, NUGENT, CONRADIE, PONNAN et MAYA
JJA
HEARD
: 21 NOVEMBER 2006
DELIVERED
: 30 NOVEMBER 2006
SUMMARY:
Jurisdiction –
High Court’s power to grant interim relief pending application to
review decision of disciplinary tribunal appointed
by the Legal Aid
Board.
Neutral citation: This
judgment may be referred to as
Legal Aid Board and Jordaan
[2006] SCA 157 (RSA).
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
[1] After the respondent
in this matter, who is an employee of the applicant, the Legal Aid
Board, had been found guilty on two charges
of misconduct by a
disciplinary tribunal appointed by the applicant, she instituted
review proceedings against the applicant in the
Pretoria High Court,
praying for an order setting aside the decision that she was guilty
of the misconduct alleged. Subsequently
she successfully applied for
an order interdicting the applicant and the chairperson of the
disciplinary tribunal from continuing
with the hearing pending the
finalization of the review application.
[2] The applicant’s
application for leave to appeal was granted by the learned judge in
the court
a quo
but limited to the question as to whether
‘[the] court lacked jurisdiction to hear and decide the matter’.
[3] According to a letter
sent by the registrar to the applicant the appeal record had to be
lodged by 12 April 2006. As the record
was not filed by that date but
only on 4 May 2006, the applicant has brought an application for
condonation of its failure to file
the record timeously and for an
order reinstating the appeal.
[4] This application is
opposed by the respondent, who contends, among other things, that the
applicant has no prospects of success
on the merits. If this
contention is correct there will be no point in granting condonation.
[5] Counsel for the
applicant did not challenge the proposition that the high court
normally has jurisdiction to grant an order preserving
or restoring
the
status quo
pending the final determination of the rights
of the litigants in a matter before it. Indeed its powers go even
further than that
because, as has been held by the Constitutional
Court, the high court’s jurisdiction to grant interim relief
depends on its jurisdiction
to maintain or restore the
status quo
and not on whether it has jurisdiction to decide the main dispute
(see
National Gambling Board v Premier, KwaZulu-Natal
[2001] ZACC 8
;
2002 (2)
SA 715(CC)
at paras 45-52).
[6] In the present case
it goes without saying that the high court will have jurisdiction to
decide what I understand will be one
of the issues arising in the
main application,
viz,
whether the disciplinary enquiry
instituted by the applicant constituted administrative action under
the
Promotion of Administrative Justice Act 3 of 2000
. To answer that
question the high court will have to decide which of the divergent
views expressed in the recent decision of this
court in
Transnet
Ltd v PNN Chirwa
[2006] SCA 131 (RSA) was correct. That being so,
unless there is a statutory provision ousting its jurisdiction to
give interim relief
in a case such as this, there can be no question
as to the high court’s jurisdiction to grant the order presently
under consideration.
Counsel for the applicant contended that the
high court’s jurisdiction to grant the interim order sought in this
matter was ousted
by
s 157(1)
, read with
s 158(1)(a)(ii)
and (iii),
of the
Labour Relations Act 66 of 1995
.
[7]
Section 157(1)
and
s
158(1)(a)
read as follows:
‘
157(1) Subject
to the Constitution and section 173 [which deals with the Labour
Appeal Court], 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.’
‘
158(1) The Labour Court may –
(a) make
any appropriate order, including –
the grant of urgent interim relief;
an interdict;
an order directing the performance of
any particular act which order, when implemented, will remedy a
wrong and give effect to the
primary objects of this Act;
a declaratory order;
an award of compensation in any
circumstances contemplated in this Act;
an award of damages in any
circumstances contemplated in this Act; and
an order for costs.’
[8] As is clear from the
other sub-paragraphs of s 158(1)(a), the sub-paragraphs relied on by
counsel for the applicant do not relate
to ‘matters that elsewhere
in terms of [the] Act . . . are to be determined by the Labour
Court’, to use the language of s 157(1),
but to the
powers
of
the Labour Court which it may use in the course of exercising the
jurisdiction conferred upon it in the Act. It follows that counsel’s
submission that the high court’s power to grant the order appealed
against in this case was ousted by s 157(1), read with s
158(1)(a)(ii)
and (iii), must be rejected.
[9] A moment’s
reflection indicates that the position can hardly be otherwise. Once
one accepts, as one must, that the high court
has the jurisdiction to
determine whether the disciplinary enquiry under consideration in the
main case constituted ‘administrative
action’ under the
Promotion
of Administrative Justice Act, then
it is difficult to see how
Parliament could ever have intended to vest exclusive jurisdiction to
grant interim relief pending that
determination in the Labour Court.
But the upholding of counsel for the applicant’s contention would
necessarily involve the conclusion
that that
was Parliament’s
intention.
[10] In the circumstances
I am satisfied that the applicant has no prospects of success on the
merits in this case and that the condonation
sought must be refused,
with costs.
[11] The following order
is made:
The application for
condonation and for the reinstatement of the appeal is dismissed with
costs.
……………
..
IG
FARLAM
JUDGE OF APPEAL
CONCURRING
NUGENT JA
CONRADIE JA
PONNAN JA
MAYA JA