About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2010
>>
[2010] ZAFSHC 10
|
|
Rantso v MEC: Department of Health, Free State (A196/08) [2010] ZAFSHC 10 (4 February 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : A196
/08
In
the
matter
between:-
MPHETHENG
LUCAS RANTSO
Appellant
and
MEC
DEPARTMENT OF HEALTH FREE STATE
Respondent
_____________________________________________________
CORAM:
H.M.
MUSI, JP
et
WRIGHT,
J
et
EBRAHIM,
J
_____________________________________________________
HEARD
ON:
21
SEPTEMBER 2009
_____________________________________________________
DELIVERED
ON:
4
FEBRUARY 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
Introduction
[1]
This
is a full bench appeal against a judgment of Cillié J
delivered in this court on 15 May 2008, wherein the learned Judge
dismissed with costs an application brought by the appellant to set
aside a decision of the respondent refusing to reinstate the
appellant in his employment. The appeal is with leave of the court
a
quo
.
Factual Background
[2] It
is important to briefly narrate the history of the matter. But
first, the factual background. The appellant had been employed
for 22 years as a senior official by the Free State Department of
Health, which is represented in these proceedings by its Member
of
the Executive Council (MEC) as respondent. His employment was
terminated on 25 February 2005 in terms of section 17(5)(a)(i)
of the
Public Service Act, 103 of 1994 (the Act) on the basis that he had
absented himself from his official duties without the
permission of
his head of department for a period exceeding one calendar month.
This arose from the fact that the appellant had
enrolled for a study
course with the University of Stellenbosch which would require his
presence at the University for a period
in excess of a month and he
accordingly applied for special leave for 33 days with effect from 28
February 2005. The appellant
completed the formal leave application
forms and handed these to his immediate supervisor. He did not,
however, await the outcome
of the application, but simply departed
for University. Upon his return, the appellant learned that his
application for leave
had not been approved and that this had
triggered the deeming provisions of section 17(5)(a)(i) of the Act.
[3]
He
was subsequently advised to make representations to the respondent
requesting to be reinstated, but the latter refused the request.
He
then referred the dispute to the Public Health and Welfare Sectoral
Bargaining Council (the Bargaining Council) ostensibly
for
conciliation and arbitration as an unfair dismissal. The Bargaining
Council held that it had no jurisdiction to entertain
the matter as
there had been no decision to dismiss; the appellant’s
employment having been terminated by operation of law.
The High Court
Application
[4] The appellant then
launched an application in the High Court and it is significant to
note how his prayers were framed:
“
1. That the
Respondent
be ordered to reinstate the Applicant to his employment with
immediate effect,
Costs of suit;
Further and/or alternative relief.”
In
opposing the application the respondent not only dealt with the
merits of the matter, but also raised an objection to jurisdiction
of
the court by way of a point
in
limine
.
The essence of the point
in
limine
was that this was an employment related matter that fell within the
exclusive jurisdiction of the Labour Court and that the High
Court
therefore had no jurisdiction.
[5] When
the matter came up for hearing, the court
a
quo
was not satisfied that the respondent had been requested to exercise
the power he had to reinstate the appellant in terms of section
17(5)(b) of the Act and postponed the matter in order to enable the
appellant to make the necessary representations in this regard.
These were duly forwarded to the respondent. The respondent’s
response was simply to repeat his earlier intimation to the
effect
that he confirmed the appellant’s discharge. The court
a
quo
correctly interpreted this to amount to a refusal to reinstate in
terms of section 17(5)(b). The appellant then applied for and
was
granted leave to amend his prayers to read as follows:
“
1.
1 That
the decision of the respondent dated 19 June 2007 not to reinstate
the applicant in terms of section 17(5)(b) of the Public
Service Act
103 of 1994 be reviewed and set aside.
1.2 That the respondent be ordered to
reinstate the applicant with immediate effect.”
[6] The
court
a
quo
first dealt with the issue of jurisdiction and found that it had
jurisdiction to hear the matter. I shall in due course deal with
the
basis of such finding. In considering the merits of the application,
the court
a
quo
found that there was a dispute of fact that could not be resolved on
the papers in relation to the question of whether the appellant
had
bona
fide
believed that his leave application would be approved in his absence
and referred the issue to oral evidence in terms of Rule 6(5)(g)
of
the Uniform Rules. The matter was postponed for the purpose. After
hearing the
viva
voce
evidence the court
a
quo
delivered a second judgment dealing with the merits. It found that
the appellant had known that his leave application would be
not be
granted and that he had absented himself without permission. It
further found that the appellant had not shown good cause
for
reinstatement and that the respondent’s decision refusing to
reinstate could not be faulted.
The Issues
[7] There
are two issues that fall for decision in this appeal. The first is
whether the court
a
quo
was correct in its finding that it had jurisdiction to hear the
matter. The second is the factual question of whether the appellant
had shown good cause to be reinstated. Put otherwise, was the court
a
quo
correct in finding that the decision not to reinstate could not be
faulted? It stands to reason that if it is found that the court
a
quo
had no jurisdiction in the matter the second question will fall away.
Now both Mr. Phalatsi, the attorney for the appellant, and
Advocate
Motloung, for the respondent, were agreed that it is preferable to
dispose first of the issue of jurisdiction for the
simple reason that
if we should find that the High Court had no jurisdiction then that
will be the end of the matter. It is an
approach that commends
itself, especially given the nature of the pleadings in this matter.
Jurisdiction
[8] The
court
a
quo
reasoned that the gist of the appellant’s complaint was that
the respondent had failed to apply his mind to what section
17(5)(b)
required of him to do. The court then proceeded as follows:
“
This in
essence is an allegation that his constitutional right to fair labour
practices has been violated.
Section 185
of the
Labour Relations Act
of 1995
gives every employee the right not to be subjected to unfair
labour practices.
Section 186(2)(c)
defines a failure or refusal by
an employer to reinstate or re-employ a former employee brought about
by any unfair
act
or omission as an unfair labour practice.”
Although
Cillié J did not say so in so many words, it is clear that he
regarded the matter as implicati
ng
a constitutional issue in respect of which the High Court has
concurrent jurisdiction with the Labour Court in terms of section
157(2) of the Labour Relations Act, 66 of 1995 (the LRA).
[9] In
support of the decision of the High Court on the point, Mr. Phalatsi
relied on
FEDLIFE
ASSURANCE LTD v WOLFAARDT
[2002] ALL SA 295
;
2002 (1) SA 49
(SCA). It was there held that
section 157(1) of the LRA does not purport to confer exclusive
jurisdiction upon the Labour Court
generally in relation to matters
concerning the relationship between employer and employee. The SCA
referred to specific sections
of the LRA in respect of which the
Labour Court has exclusive jurisdiction and held that matters not so
specifically identified
can be adjudicated upon by the High Court.
Mr. Phalatsi also relied on
FREDERICKS
AND OTHERS v MEC FOR EDUCATION AND TRAINING, EASTERN CAPE, AND OTHERS
[2001] ZACC 6
;
2002 (2) SA 693
;
2002 (2) BCLR 113
;
[2002] 2 BLLR 119
(CC) where the
Constitutional Court endorsed the view expressed in
FEDLIFE
,
supra
,
that the LRA does not confer a general jurisdiction on the Labour
Court to deal with all disputes arising from employment. O’Regan
J, writing for the unanimous court, put the matter as follows in
paragraph 40:
“
As there is no general
jurisdiction afforded to the Labour Court in employment matters the
jurisdiction of the High Court is not
ousted by section 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.”
Regarding
constitutional issues arising out of employment relations, the
Constitutional Court held that section 157(2) of the LRA
confers
concurrent
jurisdiction with the Labour Court and the jurisdiction of the High
Court is therefore not ousted.
[10] Mr.
Phalatsi also sought to rely on the judgment of the Supreme Court of
Appeal in
PHENITHI
v MINISTER OF EDUCATION AND OTHERS
2008 (1) SA 420
(SCA). In this case the SCA followed the decision in
MINISTER
VAN ONDERWYS EN KULTUUR EN ANDERE v LOUW
[1994] ZASCA 160
;
1995 (4) SA 383
(A) where it was held that a discharge in terms of a
provision similar to section 14(1)(a) of the Employment of Educators
Act,
76 of 1998 (a similar provision to 17(5)(a)(i)) was not an
administrative act and therefore not capable of review, since the
discharge
transpired by operation of law. See also the judgment of
the Labour Appeal Court in the matter of
THE
HEAD OF THE DEPARTMENT OF EDUCATION (FREE STATE PROVINCE) v SADTU AND
ANOTHER
,
Case No. JA 68/05 delivered on 27 September 2007. It had been argued
in
PHENITHI
that section 14(1)(a) had the effect of ousting the jurisdiction of
the High Court. In dismissing the contention Mpati DP (as
he then
was) pointed out that if the educator concerned were to contend that
he had the necessary permission, that would raise
a factual dispute
which would be justiciable by the courts. In the same vein the
refusal to reinstate in terms of section 14(2)
of the Educators Act
would be reviewable. Mr. Phalatsi submitted that this portion of the
judgment indicated that the High Court
has jurisdiction to entertain
an application such as the present.
[11] The
latter submission can readily be disposed of. It seems to be based
on an incorrect of reading of
PHENITHI
.
The court was not called upon to address the question of whether the
refusal to reinstate was a matter falling within the exclusive
jurisdiction of the Labour Court, with the result that the
jurisdiction of the High Court is thereby ousted. The argument seems
to have suggested that because the discharge was not reviewable that
would put the entire provision outside the reach of the courts
of
law. It was more about justiciability rather than jurisdiction.
[12] Following
FEDLIFE
and, in particular
FREDERICKS
,
the High Courts generally accepted that where a labour related
dispute raised constitutional issues, they had concurrent
jurisdiction
with the Labour Court in terms of section 157(2) of the
LRA. A violation or threatened violation of the right to fair labour
practices
being enshrined in section 23 of the Constitution came to
be accepted as sufficient to clothe the High Court with concurrent
jurisdiction
in employment related matters. That is the background
against which the decision of the court
a
quo
in this matter should be viewed. The other side of the coin is that
if an issue raised in the pleadings was not one of those specifically
assigned to the Labour Court in terms of section 157(1) of the LRA,
then the High Court would have jurisdiction. That was the
effect of
FEDLIFE
and
FREDERICKS
.
[13] For
his submission that the court
a
quo
had
erred in finding that it had jurisdiction, Mr. Motloung relied on the
judgment of the Constitutional Court in
CHIRWA
v TRANSNET LTD AND OTHERS
[2007] ZACC 23
;
2008 (4) SA 367
;
[2008] 2 BLLR 97
;
2008 (3) BCLR 251
(CC). Whilst
accepting that section 157(1) of the LRA does not confer exclusive
jurisdiction generally on the Labour Court, Skweyiya
J, writing for
the majority, made it plain that the Labour Court and other tribunals
and fora created by the LRA are meant to enjoy
preference in the
resolution of all employment related matters. The learned Judge put
the matter as follows in paragraph [47]:
“
The purpose
of the administrative justice provisions is to bring about procedural
fairness in dealings between the administration
and members of the
public.
The purpose of
labour law as embodied in the LRA is to provide a comprehensive
system of dispute resolution mechanisms, forums and
remedies that are
tailored to deal with all aspects of employment. It was envisaged as
a one-stop shop for all labour-related disputes.
The LRA provides for
matters such as discrimination in the workplace as well as procedural
fairness; with the view that even if
a labour dispute implicates
other rights, a litigant will be able to approach the LRA structures
to resolve the disputes.”
Referring
to section 240 of the LRA
Skweyiya
J had this to say in paragraph [50]:
“
This section
heralds the LRA as the pre-eminent legislation in labour matters that
are dealt with by that Act. Only the Constitution
itself or a statute
that expressly amends the LRA can take precedence in application to
such labour matters. When PAJA was promulgated,
five years after the
current LRA came into force, s 210 remained untouched. The
legislature, aware of the implications of this
provision in the LRA,
enacted PAJA without altering s 210. This is significant, in that it
would appear that the legislature intended
that PAJA should not
detract from the pre-eminence of the LRA and its specialised labour
disputes mechanisms.”
[14]
It
was pointed out in
CHIRWA
that conduct in the workplace may give rise to two causes of action,
one based on the LRA which is sourced directly from section
23 of the
Constitution, and the other based on PAJA, which is sourced directly
from section 33 of the Constitution. If this occurs,
the employee
must elect which cause of action he/she wishes to pursue. If he/she
chooses to pursue her claim under the LRA then
the Labour Court and
other structures of the LRA will have to be used. In this context,
section 157(2) was interpreted as conferring
jurisdiction on the
Labour Court to determine constitutional issues arising out of labour
disputes. The High Court will have no
jurisdiction in such matters,
so it was held. It was further held that the manner in which the
employee in that case had framed
her claim as gleaned from the
pleadings made it clear that her cause of action was based on the
provisions of the LRA over which
the Labour Court enjoyed exclusive
jurisdiction. It is precisely in this respect that
CHIRWA
was found to be distinguishable from
FREDERICKS
.
In
FREDERICKS
the employees had disavowed any reliance on the provisions of the
Labour Relations Act and
squarely based their claim on the equality
and administrative justice provisions of the Constitution
(respectively sections 9 and
33). It is worth noting that this was
before the advent of PAJA.
[16] In
the most recent judgment of
GCABA
v MINISTER FOR SAFETY AND SECURITY & OTHERS
[2009] 12 BLLR 1145
;
2010 (1) BCLR 35
;
2010 (1) SA 238
(CC) the
Constitutional Court, in a unanimous decision, endorsed the decision
in
CHIRWA
but clarified aspects thereof and reconciled it with
FREDERICKS
.
It is not necessary to go into the details of what was said in
GCABA
.
Suffice it to refer to another important aspect of the
CHIRWA
judgment that was fully endorsed, namely, that the decision of a
functionary of a state organ to dismiss does not amount to
administrative
action as defined in PAJA. I deem it necessary for
purposes of clarity to quote in full what Van der Westhuizen J,
writing for
the court, said in paragraphs [66], [67] and [68]:
“
[66] In
Chirwa
Ngcobo J found that the decision to dismiss Ms Chirwa did not amount
to administrative action. He held that whether an employer
is
regarded as ‘public’ or ‘private’ cannot
determine whether its conduct is administrative action or an
unfair
labour practice. Similarly, the failure to promote and appoint Mr
Gcaba appears to be a quintessential labour-related issue,
based on
the right to fair labour practices, almost as clearly as an unfair
dismissal. Its impact is felt mainly by Mr Gcaba and
has little or
no direct consequence for any other citizens.
[67] This view is
consistent with the judgment of Skweyiya J in
Chirwa
,
who did not decide this issue, but indicated a leaning in this
direction. It furthermore does not contradict the unanimous judgment
of this Court in
Fredericks
,
which left the issue open. There was no dispute about whether the
decision at the centre of the dispute was administrative action.
[68] Accordingly, the failure to
promote and appoint the applicant was not administrative action. If
his case proceeded in the
High Court, he would have been destined to
fail for not making out the case with which he approached this Court,
namely an application
to review what he regarded as administrative
action.”
[17]
It
is important to note that the Constitutional Court in
GCABA
came to its decision after a comprehensive review of the major
decisions on this aspect of the law, including the judgments of
the
Supreme Court of Appeal in
BOXER
SUPERSTORES MTHATHA AND ANOTHER v MBENYA
[2007] 8 BLLR 693
;
2007 (5) SA 450
(SCA) and
MAKHANYA
v UNIVERSITY OF ZULULAND
[2009] 8 BLLR 721
(SCA), and quite clearly it intended to draw the
curtain on the debates around the issue. It is worth noting what Van
der Westhuizen
J said in paragraph [3]:
“
The
decisions of this
Court
in
Fredericks
and
Chirwa
as
well as preceding jurisprudence of the Supreme Court of Appeal and
other courts, have resulted in differences of opinion in subsequent
jurisprudence on the proper interpretation and application of
overlapping constitutional, administrative and labour law provisions
and principles, especially with regard to disputes between public
sector employees and their employers. This matter gives this
Court,
as the highest court in all constitutional matters, an opportunity to
provide some clarity and guidance, based on a proper
interpretation
of the relevant provisions of the Constitution, the
Labour Relations
Act
(“LRA”) and the Promotion of Administrative Justice
Act (“PAJA”).”
[18]
It
can now safely be said the law has been laid and it can be summarised
as follows:
(a) Once
a dispute can be classified as a
quintessential labour matter, it should be pursued through the
provisions of the LRA, in which event the Labour Court would have
exclusive jurisdiction. It is otherwise imperative to determine with
reference to the pleadings which cause of action is relied
upon. If
reliance is placed on the provisions of the LRA, then the High Court
would have no concurrent jurisdiction with the Labour
Court even if
the dispute raises constitutional issues.
(b) The decision of a
functionary of an organ of state to dismiss or to refuse to appoint
or promote an employee, does not amount
to administrative action and
is not reviewable under PAJA.
Applying the law to
the facts
[1
9] Turning
to the facts of the instant matter, the dispute herein was
essentially a complaint about the refusal to reinstate the
appellant
in terms of section 17(5)(b) of the Act. It was correctly
characterised by the court
a
quo
as alleging an unfair labour practice (compare
GCABA
,
supra,
at
para 66 & 68). The appellant, just like the employee in
CHIRWA
,
initially referred the dispute to the Bargaining Council in terms of
the provisions of the LRA. The Bargaining Council was the
correct
forum to refer the matter to and would have dealt with it had the
appellant treated it, as he should have, as an unfair
labour
practice. The reason why the Bargaining Council could not entertain
it, is because it had been incorrectly treated as an
unfair dismissal
when in fact there had been no decision to dismiss. This does not,
however, detract from the fact that the appellant’s
cause of
action was based on the provisions of the LRA. It is a matter that
fell within the terms of section 186(2)(c) read with
section
191(1)(a)(i) of the LRA. The Bargaining Council would have attempted
conciliation and if that failed the matter would
have been referred
to arbitration in terms of section 191(5)(a)(iv) and ultimately for
review by the Labour Court. It is a quintessential
labour dispute.
[20] It
is significant that the appellant initially sought from the court
a
quo
an order to reinstate him on the basis that he had been unfairly
dismissed, which is again a quintessential labour matter which
fell
within the exclusive jurisdiction of the Labour Court. He
subsequently amended his pleadings and sought to set aside the
decision not to reinstate him on the basis that such decision was
reviewable under PAJA. That was the only basis on which it was
alleged that the court
a
quo
had jurisdiction. But as was held in
CHIRWA
and
GCABA
the refusal to reinstate did not amount to administrative action and
was not reviewable under PAJA. That being so, there was no
basis on
which the High Court could assume jurisdiction.
[21] I
have no hesitation in coming to the conclusion that the court
a
quo
erred when it found that it had jurisdiction in the matter.
Certainly this is a matter in which the Labour Court had exclusive
jurisdiction. It is plain to me that the seminal judgment of the
Constitutional Court in
CHIRWA
was not brought to the attention of the court
a
quo
.
Had this been done, the result would certainly have been different.
The finding on the issue of jurisdiction disposes of the
entire
appeal and it becomes unnecessary to go into the factual findings of
the court
a
quo
.
Order
[2
2] The
appeal fails and the appellant is to pay the costs. The order of the
court
a
quo
is altered to read as follows:
“The
application is dismissed with costs for lack of jurisdiction.”
___________
_
H.M.
MUSI, J
P
I
concur.
______________
G.F. WRIGHT, J
I concur.
_____________
S. EBRAHIM, J
On
behalf
of appellant: Mr. N.W. Phalatsi
Instructed
by:
N.W.
Phalatsi & Partners
BLOEMFONTEIN
On
behalf of
respondent: Adv.
S.E. Motloung
Instructed
by:
State
Attorney
BLOEMFONTEIN
/sp