Modutle v Municipal Manager: Sol Plaatjie Municipality and Others (1637/08) [2009] ZANCHC 6 (13 March 2009)

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[2009] ZANCHC 6
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Modutle v Municipal Manager: Sol Plaatjie Municipality and Others (1637/08) [2009] ZANCHC 6 (13 March 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case
Nr:
1637/08
In
the matter between:
DIEKETSENG
JOSEPHINE MODUTLE
VERSUS
THE
MUNICIPAL MANAGER:
SOL
PLAATJE MUNICIPALITY 1st Respondent
THE
EXECUTIVE MAYOR:
SOL
PLAATJE MUNICIPALITY 2
nd
Respondent
THE
EXECUTIVE DIRECTOR:
CORPOTATE
SERVICES:
SOL
PLAATJE MUNICIPALITY 3
rd
Respondent
THE
SPEAKER:
SOL
PLAATJE MUNICIPALITY 4
th
Respondent
SOL
PLAATJE MUNICIPALITY 5
th
Respondent
NEO
MOATSWI EMPLOYEE:
SOL
PLAATJE MUNICIPALITY 6
th
Respondent
Judgment
Tlaletsi
J:
Introdudction
[1]
This
is the return day for the confirmation of the rule
nisi
and interim interdict granted by
Lacock
J
on
12 December 2008 in an application brought by the applicant against
the respondents. The order which was granted by agreement
was on the
following terms:-
“1
Ordering
first, third and fifth respondents to forthwith implement the fifth
respondent’s 2008/2009 Budget provisions regarding
applicant’s
salary scale elevation from scale D3 to D5 of fifth respondent’s
relevant salary scale provisions with retrospective
effect from 1
July 2008;
Ordering
first, second and fifth respondents to immediately restore
applicant to her designated office Manager in the Office
of second
respondent and to enable her to continue her activities as such;
Ordering
first, second , fifth and sixth respondents to immediately make
available to applicant an appropriate office for her
exclusive
occupation to enable her to continue her activities as referred to
in paragraph 1.2 supra;
Ordering
first, second, fifth and sixth respondents to immediately return to
applicant her personal belongings, that were removed
from her
office previously occupied by herself, when applicant was vacated
there from on 9 October 2008;
That
fifth respondent pay the costs of this application alternatively
those respondents that oppose herein [are] ordered to
pay the costs
herein, jointly and severally, the one to pay the other to be
absolved.
That
the order granted in terms of paragraphs 1.2, 1.3 and 1.4 supra will
serve as an interim mandamus and interdict with immediate
effect.
That
leave is granted to the parties hereto to amplify their papers.
Amplifying supporting affidavits by the applicant (if any)
are to be
filed by no later than 13 January 2009; amplifying answering
affidavits (if any) by the respondents are to be filed
by no later
than 23 January 2009; and replying affidavits by no later than 30
January 2009.”
[2]
Subsequent
to the granting of the order the parties filed further papers. The
application is opposed by the fifth respondent.
The opposing
affidavit is deposed to by the first respondent in his capacity as
the Municipal Manager of the fifth respondent.
A brief factual
background is necessary for a better understanding of the issues in
this matter.
Factual
background
[3]
The
applicant has been in the employ of the fifth respondent, Sol Plaatje
Municipality (“the municipality”) and its legal predecessors

since 1 September 1989 as a typist. She was later appointed in the
office of the mayor from 1 January 1999 as secretary. Her
position
was graded as Level C2 of the scale applicable at the municipality.
On 25 July 2001 the then Executive Mayor of the municipality
directed
a letter to the Municipal Manager in which he advised that in terms
of the new processes and structures introduced on
18 July 2001 the
applicant had assumed greater responsibility as per her job
description. The Executive Mayor further advised
that he was
satisfied that the applicant had a comprehensive knowledge of all the
aspects of his office and that of the City Manager
and that she had
the ability to execute all the responsibilities satisfactorily. The
Executive Mayor further instructed that her
salary scale be moved
from R74 244 to R83 496 per
annum
with effect from 01 August 2001. This motivated request by the
Executive Mayor was complied with.
[4]
The
applicant was with effect from 1 September 2003 appointed Acting
Office Administrator (D1) in the office of the Executive Mayor.
On
22 December 2003 the applicant was appointed Administrator: Political
Offices. There is a dispute about whether by this appointment
the
applicant was now a so called “political deployee”. However, it
is not in dispute that she was also tasked to administer
the
political component in the office of the Executive Mayor. Nothing
however, turns on this aspect for the purpose of this application.
[5]
On
12 March 2007 the applicant applied and was appointed to the position
of “Executive Mayor Office Manager: Mayor’s Office”
with
effect from 1 October 2006 on post level D3. The position was a
contractual appointment for a period of five years.
[6]
On
1 October 2008 the second respondent took office as the new Executive
Mayor of the municipality. On or about the same date
the second
respondent called the personnel he found in office, including the
applicant, to a meeting. Some of the members of the
Mayoral
committee were present. At this meeting the second respondent
introduced himself as the new Executive Mayor. He mentioned
that
there would be changes to the personnel structure of his office which
would result in some of the staff being affected; that
there was a
possibility of transfer of some of the staff to other offices or
directorates but that a final decision had not been
taken yet. The
employees were also told to remain in their existing offices and
must, if necessary, help and assist until the
executive Mayor had
decided when and where were the employees to be transferred. It is
common cause that the applicant had an
opportunity to say something
at this meeting. Although there is a dispute as to what she exactly
said, it is however common cause
that there was an understanding that
no final decision on the transfer of staff had been taken and that
all employees would be
engaged if they were to be transferred. Among
the disputed versions, is the applicant’s averment to the effect
that the second
respondent called the applicant back into his office
after the meeting under discussion and told her that he would speak
to her
the following day (2 October 2008) about her matter. However,
she continued, the second respondent did not call her as promised.

These averments are denied by the second respondent who contends that
he would not have agreed to hold separate discussions with
the
applicant when all other employees were also involved.
[7]
It
is not disputed that the applicant met one Duma Lebakeng
(“Lebakeng”),
her union organizer during the afternoon of 1 October 2008 and
reported to him that she had noticed that someone was performing
her
functions already and that he (
Lebakeng)
should ensure that her transfer is done properly as she was not a
political deployee. The applicant mentioned that she also requested
Lebakeng
to
“ensure
that her transfer is only done if the amount budgeted to my position
which I was supposed to have been progressed to which
is a D5 (from
D3) is implemented retrospectively from 1 July 2008.”
None
of the respondents was a party to these discussions.
[8]
The
applicant states that on 8 October 2008
Lebakeng
held a meeting with second respondent at which her progression to D5
level as well as her possible transfer was discussed. She
states
further that at this meeting second respondent mentioned that he
agreed to the proper implementation of a possible transfer
together
with a D5 progression and that a meeting should be arranged with
third and first respondents as well as
“two
shop stewards”
to discuss and facilitate the implementation of her salary
progression and transfer. The Municipality’s version on this
aspect
is that second respondent did have a meeting with
Lebakeng
and that he also requested him to arrange a meeting with the other
shop stewards as well. He mentioned that the meeting he held
with
Lebakeng
was about the employees in general. He denies that any undertaking
was given to either
Lebakeng
,
the applicant or any other union official that the applicant will be
progressed from her existing D3 level to a D5 salary level.
He
further denies that a progression in salary was made a condition for
the applicant’s transfer. The deponent states that
the second
respondent did not have any background on the applicant’s
performance as he only found her in the office on his appointment
and
could, therefore, not make any undertaking to promote her. It is the
Municipal Manager, he continued, who, with the duties
and delegations
afforded to him in terms of,
inter
alia
,
sec 55(2) of the Local Government: Municipal
Systems
Act,
1
and
as the accounting officer of the Municipality, would have been the
person to approve or support the promotion or salary progression
of
the applicant after a proper process had been followed. He further
states that the shop stewards’ meeting suggested by the
second
respondent did take place and that the shop stewards threatened to
resign from the union in the event of their union representing
the
applicant in her present dispute with the Municipality. He states
that what prompted the shop stewards’ conduct is their
unhappiness
about a previous application that the union launched against the
Municipality in which they sought the applicant’s
appointment to
her current position at the Municipality.
[9]
On
9 October 2008 the applicant was not present at work. According to
her she had completed a leave application form the previous
day,
taking leave to enable her to attend court for an unrelated private
matter. On her return on 10 October 2008 she found her
office door
open. She discovered that all her personal belongings and furniture
were removed. The Municipality’s version on
this aspect is that on
a previous occasion a decision was taken to the effect that the
Executive Mayor would move his office to
a new ‘wing’ or building
and that the Speaker was to occupy the offices that had been
occupied by the Executive Mayor. He
states that on 7 October 2008 a
certain
Piet
Louw
whose functions are that of a caretaker, approached the applicant in
her office and informed her of the decision to move her to
a new
office. The applicant is said to have informed
Piet
Louw
that she would not vacate the office until she received a formal
instruction to do so. He mentions further that the removal of
the
applicant’s property and the furniture in her office was supervised
by a security officer. He also states that all these
items were
taken to a safe place because the applicant was absent and a move had
to be done regardless of her absence. The applicant’s
attitude is
that the respondents ought to have known where she had gone to as she
completed a leave application form before her
absence. She denies
that
Piet
Louw
spoke to her about her relocation.
[10]
The
personal items that the applicant claims were removed were three
sealed envelopes containing cash in the amounts of R5000-00,
R900-00
and R200-00 respectively, a pair of spectacles, framed graduation
photographs, personal insurance documents, contracts,
office
decorations consisting of African art and baskets as well as personal
notes. Its is common cause that subsequent to the
removal of these
items the applicant laid criminal charges with the South African
Police Services and the matter is apparently
pending.
[11]
It
is common cause that on 14 October 2008 a meeting between the second
respondent, the applicant as well as her attorney of record,
Mr
Lekena
Bosiu
(“Bosiu”) could not be held. The Municipality’s version is
that this meeting was never arranged with any of its personnel.

However, the applicant states that the meeting was arranged. On 21
October 2008
Lebakeng,
Bosiu
and the applicant met one of the councillors in the absence of the
second respondent. Although the second respondent states that
he was
not aware of this meeting, the applicant insists that the meeting was
arranged with him and he agreed to attend. Nothing,
for the purpose
of the present dispute, turns on the discussion that took place at
this meeting.
[12]
It
was the applicant’s view that she has not been allocated an office
and that she has no place to work from. On the contrary,
the first
respondent contends that there was an office available that the
applicant could work from but she remained dissatisfied
that her
property had been removed from her office without her consent and is
refusing to occupy a new office. It is common cause
that the
applicant completed leave application forms requesting vacation leave
from 22 October 2008 to 31 October 2008 as well
as from 1 November
2008 to 12 November 2008. The applicant’s version is that she
applied for leave on the suggestion by the
first respondent when
Lebakeng,
during
a meeting she held with the first respondent, raised a concern that
the applicant had no place to work from. She further
states that it
was then agreed that the applicant should go to the third respondent
to complete the necessary forms. This version
is vehemently denied
by the first respondent who contends that there was no reason for the
applicant to take leave. He contends
that applicant applied for
leave in the normal and usual way and her leave was approved by the
third respondent as the officer
responsible for these matters. He
denies his involvement in the arrangements regarding the applicant’s
application and approval
of her leave.
[13]
It
is common cause that the applicant referred her dispute with the
Municipality to the South African Local Bargaining Council
(“the
bargaining council”). On 4 November 2008 the dispute was set down
for conciliation in terms of the provisions of the
Labour
Relations
Act
2
(the LRA). The dispute remained unresolved and the relevant
certificate of outcome confirming that the dispute remained
unresolved
was issued by the bargaining council. On the same day the
applicant’s attorneys of record forwarded a letter to the first
respondent
in which they confirmed that the dispute had not been
resolved and informing him that their client required and would apply
for
the extension of her leave for a further period of sixteen days
to enable her to take further steps to bring the matter to finality.

The necessary application form for vacation leave for the period 13
November 2008 to 28 November 2008 was signed by the applicant
on 7
November 2008. The applicant maintains that the leave that she took
on all these occasions was sick leave and not vacation
leave despite
the fact that on the application form it is indicated that she
applied for vacation leave.
[14]
On
18 November 2008 the applicant issued papers for this application
that was to be heard on 12 December 2008 wherein she was seeking
the
orders set out in paragraph one above. She based her application on
the following facts:
She
is still the manager of second respondent’s office;
She
has not been transferred to any other section away from second
respondent’s office;
She
has been relocated from her office without her knowledge and
permission and without being allocated another office.
A
situation has been created where she is not in a position to do
her work and this situation is unbearable and she must be
restored
to her position;
She
is available and willing to do her work as manager of the office of
the second respondent which work she has been appointed
to perform;
That
until to date she has not been informed that her office, from which
she has been vacated, is not her office any longer
or that she is
not authorised to fulfil her duties from that office;
That
she is thus entitled to continue her duties as manager of the
office of the second respondent and to continue doing such

functions from her office as before;
That
she has not been afforded any opportunity to state her case why she
should not be transferred with or without conditions;
That
she is entitled to the salary scale D5 from 1 July 2008 and that
the non-implementation of her salary elevation is unlawful
and
contrary to the Municipality’s own budget;
That
she approached the bargaining council without any success and she
is therefore entitled to approach this court for assistance
and
relief.
[15]
The
applicant concludes that she has been forced into a situation where
she had to take sick leave or even “absorb” her own
leave which
is now exhausted and that she is not medically unfit to do her work.
[16]
The
Municipality’s response to the applicant’s contentions may be
summarised as hereunder.
That
the applicant still carries her designation in terms of her
contract of employment and her status has not been affected
and
that she still receives her remuneration and benefits;
Her
office had to be moved together with the other staff in the office
of the Executive Mayor and that her furniture and belongings
had
to be stored in the safe place pending the allocation of an office
to her which office has now been allocated and is still
tendered;
That
the applicant was informed that she may be transferred but such
decision has not been taken yet;
That
there rest no obligation on an employer to provide work to an
employee in the position of the applicant and that nevertheless
as
an employee she remains obliged to place her full labour potential
at the disposal of her employer;
She
cannot prescribe to the fifth respondent where and how she will
fulfil her employment obligations;
The
applicant is not entitled to sick leave due to the fact that she is
clearly not medically unfit to do her work and that
her conduct
constitutes a misuse of leave which may justify disciplinary
action;
The
applicant is not entitle to an automatic progression from D3 to D5
salary level, and her progression would amount to a promotion.

That such promotion would require a decision to be made based on a
proper motivation for such promotion.
[17]
With
regard to the fact that applicant’s name appears on the document
appearing to be an extract from the budget, the Municipality
contents
that the document was only meant for budgeting purposes and did not
serve before council for approval and is not part
of the final budget
that was approved by the council of the Municipality.
[18]
With
regard to the draft letter prepared for the signature of the first
respondent by third respondent and addressed to herself,
stating that
the final budget makes provision for the salary progression of the
applicant to D5 level and that it should be implemented,
the first
respondent contends that he would not have approved and signed the
letter merely because there is a provision in the
budget without
following proper procedures that include motivation and reasons for
placing the applicant on salary level D5.
Points in limine
[19]
The
respondents has also raised three in
limine
points. The first in
limine
point is to the effect that this Court lacks jurisdiction to
entertain the applicant’s dispute with the respondents as the
issues
she raises are labour disputes. The respondents contend that
the applicant should have proceeded to either refer the dispute to

arbitration at the bargaining council or to the Labour Court. The
second point in
limine
is that the matter is not urgent as the applicant threatened to take
further steps in a letter dated 4 November 2008 and only issued
the
application on 18 November 2008, relying upon a draft letter dated 7
July 2008. The third point in
limine
is to the effect that all the other respondents excluding the
Municipality are not holders of rights or obligations to the
applicant
in relation to her appointment as an employee, the
provision of office space or her appointment or promotion to any
higher office
and as such their being cited amount to a mis-joinder.
[20]
During
argument, it was made clear by Mr
Claasen
that
much should not be made of the fact that on the first hearing of the
matter the interim orders were granted by consent. He
mentioned,
which makes sense, that the agreement was merely to allow the
status
quo
to be maintained and that the parties be afforded an opportunity to
file papers so that the issues can be properly argued and adjudicated

on the return day. This submission was not disputed by Mr Burger who
appeared on behalf of the applicant. Before me the parties
were in
agreement that the actual issues that require determination are the
jurisdiction of this Court to entertain the matter,
urgency,
mis-joinder and a
prima
facie
right. I will now proceed to consider the applicable authorities
relating to the jurisdiction aspect.
Legal
Framework
[21]
The
starting point in this matter are the provisions of the LRA. Section
157 of the LRA provides that:-
“
157 Jurisdiction
of Labour Court
(1)
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.
(2)
The
Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened violation of any fundamental

right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa, 1996, and arising from-
(a) employment
and from labour relations;
(b) any
dispute over the constitutionality of any executive or administrative
act or conduct, or any threatened executive or administrative
act or
conduct, by the State in its capacity as an employer;
and
(c) the
application of any law for the administration of which the Minister
is responsible.
(3)
Any reference to the court in the Arbitration Act, 1965 (Act 42 of
1965), must be interpreted as referring to the Labour Court
when an
arbitration is conducted under that Act in respect of any dispute
that may be referred to arbitration in terms of this
Act.
(4)
(a)
The Labour Court may refuse to determine any dispute, other than an
appeal or review before the Court, if the Court is not satisfied
that
an attempt has been made to resolve the dispute through conciliation.
(b)
A certificate issued by a commissioner or a council stating that a
dispute remains unresolved is sufficient proof that an attempt
has
been made to resolve that dispute through conciliation
.
(5)
Except as provided in section 158 (2), the Labour Court does not
have jurisdiction to adjudicate an unresolved dispute if this
Act
requires the dispute to be resolved through arbitration.”
(emphasis
added).
[22]
On
the subject of jurisdiction, Section 77 of the
Basic
Conditions of Employment Act
3
(“the BCEA”)
provides
that:
“
77
Jurisdiction of Labour Court
(1)
Subject to the Constitution and the jurisdiction of the Labour
Appeal Court, and except where this Act provides otherwise,
the
Labour Court has exclusive jurisdiction in respect of all matters in
terms of this Act, except in respect of an offence specified
in
sections 43, 44, 46, 48, 90 and 92.
(2)
The Labour Court may review the performance or purported performance
of any function provided for in this Act or any act or
omission of
any person in terms of this Act on any grounds that are permissible
in law.
(3)
The
Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment,

irrespective of whether any basic condition of employment constitutes
a term of that contract.
(4)
Subsection (1) does not prevent any person relying upon a provision
of this Act to establish that a basic condition of employment

constitutes a term of a contract of employment in any proceedings in
a civil court or an arbitration held in terms of an agreement.
(5)
If proceedings concerning any matter contemplated in terms of
subsection (1) are instituted in a court that does not have
jurisdiction in respect of that matter, that court may at any stage
during proceedings refer that matter to the Labour Court.”
(emphasis
added).
[23]
The
powers of the Labour Court are also defined in the LRA. Section 158
provides that:
“
158
Powers of Labour Court
The
Labour Court may-
(a) make
any appropriate order, including-
(i)
the
grant of urgent interim relief
;
(ii)
an
interdict
;
(iii)
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;
(iv) a
declaratory order;
(v) an
award of compensation in any circumstances contemplated in this Act;
(vi) an
award of damages in any circumstances contemplated in this Act; and
(vii) an
order for costs;
(b) order
compliance with any provision of this Act;
(c) make
any arbitration award or any settlement agreement an order of the
Court;
(d) request
the Commission to conduct an investigation to assist the Court and to
submit a report to the Court;
(e) determine
a dispute between a registered trade union or registered employers'
organisation and any one of the members or applicants
for membership
thereof, about any alleged non-compliance with-
(i) the
constitution of that trade union or employers' organisation (as the
case may be); or
(ii) section
26 (5) (b);
(f) subject
to the provisions of this Act, condone the late filing of any
document with, or the late referral of any dispute to,
the Court;
(g) subject
to section 145, review the performance or purported performance of
any function provided for in this Act on any grounds
that are
permissible in law;
(h) review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible
in law;
(i) hear
and determine any appeal in terms of section 35 of the Occupational
Health and Safety Act, 1993 (Act 85 of 1993); and
(j) deal
with all matters necessary or incidental to performing its functions
in terms of this Act or any other law.”
[24]
The
interpretation and application of sec 157 of the LRA has been the
subject of much debate. The debate relevant to this matter
is, in
which matters does the Labour Court have exclusive jurisdiction and
those in respect of which the Labour Court shares jurisdiction
with
the High Court, in instances where the state or an organ of state is
involved as an employer. I deem it unnecessary, for
the purpose of
this judgment, to discuss the previous judgments of the High Courts,
the Supreme Court of Appeal as well as the
Labour and the Labour
Appeal Court on the subject because of the recent judgment of the
Constitutional Court in
Chirwa
v Transnet Ltd and Others
4
.
It is in my view appropriate to deal directly with this judgment of
the Constitutional Court as it has made an important and
far reaching
development on the subject.
[25]
The
facts in
Chirwa’s
case are almost similar to the facts in this case. Ms
Chirwa
was
employed by Transnet. She was dismissed by her employer after the
initiation of disciplinary proceedings against her. She
referred a
dispute about her dismissal to the
Commission
for Conciliation, Mediation and Arbitration
(“the
CCMA”)
.
She contended that her dismissal was unfair. The CCMA was unable to
resolve the dispute within the stipulated period of 30 days
5
.
The CCMA issued a certificate to the effect that the dispute
remained unresolved and recommended arbitration of the dispute in

accordance with section 191
6
of the LRA. Instead of proceeding to initiate arbitration
proceedings, Ms
Chirwa
approached the High Court seeking an order setting aside the
proceedings that resulted in her dismissal. She also sought an order

for her reinstatement to her former position. Her application was
successful. Her employer successfully appealed against the
order and
judgment of the High Court in the Supreme Court of Appeal (“the
SCA”).
[26]
The
issues that were to be determined by the SCA were (a) whether
dismissal of Ms
Chirwa
was a matter that fell to be determined exclusively by the Labour
Court in terms of sec 157(1) of the LRA, and (b) whether her

dismissal constituted ‘administrative action’ as defined in sec 1
of the Promotion of Administrative Justice Act (“PAJA”).
7
On the first issue which I would refer to as the jurisdiction issue,
four judges from the panel of five held that Ms
Chirwa
had raised a constitutional issue justifiable in the High Court which
had concurrent jurisdiction with the Labour Court in respect
of any
violation of a constitutional right and that an employee in Ms
Chirwa’s
position
could therefore institute proceedings in either the Labour Court or
the High Court, and having chosen to approach the High
Court, that
court had jurisdiction. On the second issue relating to the
applicability of PAJA two judges (
Mthiyane
JA with Jafta JA
concurring) held that in order for an employee to secure the relief
she sought, she had to establish that the decision to dismiss
her
constituted “administrative action” as defined in sec 1 of PAJA,
which meant establishing,
inter
alia,
that the decision entailed exercising a public power or performing a
public function in terms of any legislation.
8
The two judges held that the nature of the conduct involved was the
termination of a contract of employment and not one involving
the
exercise of any public power or performance of a public function in
terms of any legislation. The third judge (
Conradie
JA
)
held that she had approached the wrong court, while two dissenting
judges
(Mpati
DP and Cameron JA)
held that public sector dismissals do constitute administrative
action.
[27]
Ms
Chirwa
applied for leave to appeal to the Constitutional Court. Leave to
appeal was granted. However, her appeal was unanimously dismissed
by
the Constitutional Court. The Constitutional Court was however split
on the jurisdictional issue.
Skweyiya
J
,
writing for the majority, recognized that the purpose of Labour Law
as embodied in the LRA is the proved comprehensive system
of dispute
resolution mechanism, forums and remedies that are tailored to deal
with all aspects of employment and that
“[i]t
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”
9
.
The learned judge of the Constitutional Court referred to Section
210 of the LRA which provides that:
“
(1)
If any conflict, relating to the matters dealt with in this Act,
arises between this Act and the provisions of any other law
save the
Constitution or any Act expressly amending this Act, the provisions
of this Act will prevail.”
As
to the meaning and implications of sec 210, the learned judge had the
following to say:
“
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.”
10
[28]
In
response to the question whether the High Court has concurrent
jurisdiction with the Labour Court,
Skweyiya
J
held that:
“
The
starting point for the enquiry as to whether the High Court has
concurrent jurisdiction with the Labour Court in respect of
Ms
Chirwa's claim is s 157(1) of the LRA, which provides that the Labour
Court has exclusive jurisdiction over all matters that
'are to be
determined by the Labour Court'.
Thus
where exclusive jurisdiction over a matter is conferred upon the
Labour Court by the LRA or other legislation, the
2008 (4) SA
p387jurisdiction
of the High Court is ousted. The effect of s 157(1)
is therefore to divest the High Court of jurisdiction in matters that
the Labour
Court is required to decide, except where the LRA provides
otherwise. It is apparent from the provisions of s 157(1) that it
does
not confer 'exclusive jurisdiction upon the Labour Court
generally in relation to matters concerning the relationship between
employer
and employee'
.
It seems implicit from the provisions of this section that the
jurisdiction of the High Court is not ousted simply because a dispute

is one that falls within the overall sphere of employment relations.
The jurisdiction of the High Court will only be ousted in
respect of
matters that, in the words of s 157(1) 'are to be determined by the
Labour Court'. This is evident from s 157(2), which
contemplates
concurrent jurisdiction in constitutional matters arising from
employment and labour relations.”
11
(emphasis
added)
The
majority of the Court held further that the LRA is the primary source
in matters concerning allegations by employees of unfair
dismissal
and unfair labour practice irrespective of who the employer is, and
includes the state and its organs as employers.
12
[29]
The
Constitutional Court was also faced with its earlier decision in
Fredericks
& Others v MEC for Education and Training, Eastern Cape and
Others
.
13
In
Fredericks
the Constitutional Court unanimously held that it was clear that the
overall scheme of the LRA did not confer a general jurisdiction
on
the Labour Court to deal with all disputes arising from employment
and as there is no general jurisdiction afforded to the Labour
Court
in employment matters the jurisdiction of the High Court is not
ousted by sec 157(1) simply because the dispute was one falling

within the overall sphere of employment relations. The Court held
further that other than sec 157(2), there was no express provision
in
the LRA affording the Labour Court jurisdiction to determine disputes
arising from alleged infringements of constitutional rights
by the
state acting in its capacity as an employer and that whatever else
its import, sec 157(2) could not be interpreted as ousting
the
jurisdiction of the High Court since it expressly provided for
concurrent jurisdiction of the High Court and Labour Court.
With
regard to the provision of sec 158(1)(h)
14
the Court held that the section could not be read as conferring a
jurisdiction on the Labour Curt to determine constitutional matters

sufficient, when read with sec 157(1), to exclude the jurisdiction of
the High Court. The Court accordingly held that the applicant’s

dispute was not excluded from the jurisdiction of the High Court.
[30]
Skweyiya
J
found Fredericks’ case distinguishable from
Chirwa
in that (a) the applicants in Fredericks expressly disavowed any
reliance on sec 23(1) of the Constitution which entrenches the
right
to a fair labour practice, and that the claimants in
Fredericks
did not rely on the fair labour practice provisions of the LRA or any
other provision of the LRA.
Skweyiya
J
concluded that the Court in
Fredericks
did not consider, but left open, the question whether a dispute
arising out of the interpretation or application of a collective

agreement can also give rise to a constitutional complaint as
envisaged in sec 157(2) of the LRA.
15
[31]
On
the issue as to whether Ms
Chirwa’s
dismissal
constituted administrative action, the Constitutional Court was
unanimous that her dismissal did not constitute administrative
action
and hence was not reviewable under PAJA. The minority
(Langa
C J, Mokgoro J and O’Regan J)
held that the High court could not be deprived of jurisdiction merely
because her dismissal did not constitute administrative action.
This
conclusion was however subject to the qualification that the
reasoning does not entail that dismissals of public employees
will
never constitute administrative action under PAJA.
[32]
It
is to be noted that the majority of the Constitutional Court in
Chirwa’s
case did not specifically consider the situation where the Labour
Court lacked jurisdiction to entertain a dispute on the basis
that
the issue in dispute required that it should be referred to
arbitration
16
.
Also relevant to this aspect, is the fact that section 158(2)
provides that the Labour Court may, where it becomes apparent that

the dispute ought to have been referred to arbitration, (a) stay the
proceedings and refer the dispute to arbitration; or (b) with
the
consent of the parties and if it is expedient to do so, continue with
the proceedings with the Court sitting as an arbitrator,
in which
case the Court may only make any order that a commissioner or
arbitrator would have been entitled to make. It is unimaginable
that
a situation would arise where a party would agree to the Labour Court
sitting as an arbitrator where there is an objection
to the
jurisdiction of the High Court to entertain a dispute.
[33]
In
Nakin
v MEC, Department of Education, Estern Cape Province & Others,
17
Froneman J
considered
whether
Chirwa
disturbed or overruled earlier judgments which ruled that the High
Court had jurisdiction in matters involving labour disputes
between
the State and its employees. These decisions includes
Fedlife
Assurance
Ltd v Wolfaardt
18
;
and
Fredericks
& Others v MEC for Education and Training, Eastern Cape and
others
19
,Boxer Superstores Mthatha and another v Mbenya
20
.
In
Nakin
the issue related to a claim by a teacher for remuneration lost as a
result of a mistaken demotion. The error was acknowledged
by the
department and further undertook to reinstate the applicant to his
former grade and a correction of his salary with retrospective

effect. The employee launched an application seeking orders
declaring that the department’s failure to comply with its
obligations
constituted a breach of his right to fair administrative
action, reviewing the conduct of the department and directing the
department
to give effect to the improved salary benefits. The
employee launched the application in terms of the Provisions of the
Promotion
of Administrative Justice Act
21
.
The department relied on
Chirwa’s
decision for its opposition, contending that the High Court lacked
jurisdiction because the dispute fall under the LRA.
[34]
Froneman
J,
held (with hesitation) that
Chirwa
may have disturbed a “settled state of affairs” but that it did
not have the effect of overruling the existing state of the
law. The
learned judge held that
Chirwa
concerned a dismissal, while the case before him concerned a dispute
about remuneration and benefits which possibly distinguished
Chirwa
from
Nakin
.
The Court noted that
Nakin
was seeking relief on the basis that the failure by the department to
implement his properly approved reinstatement to post level
4 status
amounts to unlawful administrative action and that he is entitled to
certain relief in that regard; that
Nakin
was not relying on any allegation of unfairness under the LRA as the
cause of his application. The Court thereafter found, on
the
authority of
Fredericks
(supra) that the High Court had jurisdiction to determine whether, on
the merits,
Nakin
does have a claim based on alleged unlawful administrative action.
[35]
The
Supreme Court of Appeal also had an opportunity to consider the
effect of the Constitutional Court’s judgment in
Chirwa
in
Makambi v Member of the Executive Council of the Department of
Education Eastern Cape Province
22
.
The facts in this case were that
Makambi
had worked as a teacher for about seven years. She was transferred
to another school in a temporary capacity. She was, a few
months
later, told that she was in a post additional to the establishment of
the school from which she had been transferred. Her
salary was then
stopped because her earlier application for appointment as a
permanent educator was not approved. She approached
the High Court
for orders reviewing the decisions to stop her salary and declaring
her status as an educator to be permanent in
nature. Her application
was dismissed on the basis that she had not exhausted her internal
remedies and further that the court
lacked jurisdiction to determine
the “administrative action” under review as it constituted an
unfair labour practice as contemplated
in section 23(1) of the
Constitution. She appealed to the Supreme Court of Appeal and the
hearing of her appeal was delayed pending
the judgment of the
Constitutional Court in
Chirwa
.
[36]
In
the Supreme Court of Appeal,
Makambi
contended that her case was distinguishable from
Chirwa
in that
Chirwa
had
initiated her claim under the LRA and subsequently approached the
High Court with a claim under PAJA. Her second contention
was that
the High Court retained jurisdiction to entertain her matter relying,
inter
alia
,
on
Nakin’s
case in which it was held that the Constitutional Court in
Chirwa
did not overrule its earlier decision in
Fredericks
and that
Makambi
was
entitled on the strength of that decision to bring her claim in the
High Court.
[37]
Farlam
JA
who wrote the judgment for the majority, found the distinction sought
to be made between
Makambi
and
Chirwa
to be immaterial as he understood the Constitutional Court in
Chirwa
to have held that a claimant in the position of
Makambi
(and
Chirwa) does not have an election, and that the fact that Makambi did
not make an election to be immaterial. With regard to
the second
contention,
Farlam
JA
held that:
“
It
is true that the majority in Chirwa did not overrule Fredericks but
were content to distinguish it. For the purposes of considering
Ms
Collett's submission on this point it is necessary to have regard to
the basis on which Fredericks was distinguished in Skweyiya
J's
judgment in order to ascertain where he drew the line between the two
cases and on which side of that line the present case
falls. The
matter was dealt with in paras 56 - 61 of Skweyiya J's judgment.
Paragraph 58 includes the following:
‘
Notably,
the applicants in Fredericks expressly disavowed any re- liance on s
23(1) of the Constitution, which entrenches the right
to a fair
labour practice. Nor did the claimants in Fredericks rely on the fair
labour practice provisions of the LRA [the
Labour Relations Act 66 of
1995
] or any other provision of the LRA.’
It
is correct that the appellant did not rely on any of the provisions
of the LRA but she did in terms rely on s 23(1) of the Constitution,

which entrenches the right to fair labour practices. As Skweyiya J
put it (at para 66), 'the LRA seeks to regulate and give effect
to'
this section of the Constitution.
[16]
It is instructive in this regard to examine Ms Chirwa's claim, which
it was held she could not bring in the High Court. As
appears from
para 157 of the dissenting judgment of Langa CJ, with whom Mokgoro
and O'Regan JJ concurred, she contended that her
dismissal was
administrative action as understood by the Promotion of
Administrative Justice Act 3 of 2000 (which I shall call
in what
follows 'PAJA'). The administrative action of which she complained
contravened, so she alleged, (i) s 3(2)(b) of PAJA for
failing to
provide proper notice; (ii) s 6(2)(a)(iii) of PAJA because the
administrator who took the decision to dismiss her was
biased; (iii)
s 3(3)(a) of PAJA because she was prevented from obtaining assistance
or representation; (iv) s 6(2)(b) of PAJA because
a mandatory and
material procedure prescribed by an empowering provision was not
complied with; and (v) s 6(2)(f)(i) because the
action taken against
her contravened another law. Ms Chirwa sought in respect of the last
two complaints to rely on items 8 and
9 of Schedule 8 to the LRA.
Because of this Skweyiya J held (at para 61) that 'when she
approached the High Court she made it clear
that her claim was based
on a violation of the provisions of the LRA'.
[17]
When one compares the complaints set out in the appellant's founding
affidavit, which I have summarised in para [9] above,
with those on
which Ms Chirwa relied it is clear that it is not possible to hold
that this case falls on the Fredericks side of
the line of
distinction drawn in the Chirwa case. It follows that Ms Collett's
submission that Fredericks applies cannot be upheld.”
[38]
The
majority of the Court concluded that
Makambi
could not pursue her claim in the High Court and the appeal was
accordingly dismissed.
Nugent
JA
concurred
in the order by
Farlam
JA
and set out the reasons for his concurrence in a separate judgment.
Nugent
JA
found that the court was confronted with conflicting decisions of the
Constitutional Court in
Frederiks
and
Chirwa
and held that whilst the outcome in
Chirwa
might be desirable he is not at all sure that the court was
“bound-
or even permitted- to adopt and apply a supposed policy if the
legislature has not embodied that policy in law.”
23
The learned judge shared the reservation expressed by the Chief
Justice in his dissenting judgment in
Chirwa
:
“
We
must be careful as a court not to substitute our preferred policy
choices for those of the legislature. The legislature is the

democratically elected body entrusted with legislative powers and
this court must respect the legislation it enacts, as long as
the
legislation does not offend the Constitution.”
24
On
the issue as to whether the conduct constituted administrative action
Nugent
JA
held the view that the conduct complained of in
Makambi
is not materially distinguishable from the conduct that was in issue
in
Chirwa
and agreed that the appeal should be dismissed.
[39]
In
response to the point in
limine
on jurisdiction, counsel for the applicant submitted that this Court
is clothed with jurisdiction in terms of sec 157(2) of the
LRA and
sec 77(3) of the BCEA. He submitted that the fact that the dispute
relating to elevation to a higher salary scale served
in the
Bargaining Council does not detract from the jurisdiction of this
Court. He further submitted that the failure by the Municipality
to
implement the salary progression of the applicant from salary level
D3 to D5 is an “administrative act” as defined in sec
1 of PAJA
25
.
It shall be convenient to deal with the issue whether the actions
taken or failure thereof by the Municipality amount to administrative

action.
Did
failure to progress the applicant from salary level D3 to D5 amount
to administrative action?
[40]
In
response to this question, it is appropriate to consider the real
issue and the conduct complained of in the founding affidavit.
As
shown above, the applicant’s cause of action related to three
issues, being her transfer (which included other staff members
in the
office of the Executive Mayor), her progression from a D3 to D5
salary level, the relocation of her office from one building
to the
other where the new Executive Mayor is to be accommodated and the
removal of furniture and her personal belongings from
such office in
her absence. She complained that there is no indication that the
Municipality and or the first, second and third
respondents
“have
any intention to assist her with the implementation of my salary
elevation or to resume my duties as office manager of second

respondent or to re-occupy my office”
hence the relief sought. She further stated that the
non-implementation of the salary elevation is unlawful and “contra”
fifth respondent’s own budget and the implementation thereof.
[41]
It
is evidently clear that nowhere in her founding affidavit did the
applicant rely on any administrative action or failure thereof
on the
part of the Municipality as her cause of action. It was only in the
replying affidavit where the applicant introduced a
new cause of
action when she claims that the dispute concerns both her right not
to have her constitutional rights infringed unreasonably
and
unjustifiably as well as her contractual rights based on her contract
of employment. She further refers to her right not to
be deprived of
her property arbitrarily, her right to human dignity and right to
fair administrative action in terms of sections
10, 25 and 33 of the
Constitution. Notably all those facts are raised only after the
Municipality had raised the points in
limine
referred to above in the answering affidavit. It is a well
established principle or our law that a party should make its case
in
the founding affidavit. The applicant should not be permitted to
make out a new case in reply. Nowhere in her papers does
the
applicant allege that she is bringing her application in terms of
PAJA.
[42]
It
cannot be disputed that all that the applicant is complaining about
arise from her employment relationship with the Municipality.
The
applicant would not have found herself in this situation had it not
been for the fact that she is employed by the Municipality.
In all
the instances complained about, the Municipality was acting in its
capacity as the employer of the applicant. The source
of the power
involved is the contract of employment between the applicant and the
Municipality. The following instructive words
of
Ngcobo
J
are
apposite:
“
The
subject-matter of the power involved here is the termination of a
contract of employment for poor work performance. The source
of the
power is the employment contract between the applicant and Transnet.
The nature of the power involved here is therefore
contractual. The
fact that Transnet is a creature of statute does not detract from the
fact that in terminating the applicant's
contract of employment, it
was exercising its contractual power. It does not involve the
implementation of legislation which constitutes
administrative
action. The conduct of Transnet in terminating the employment
contract does not in my view constitute administration.
It is more
concerned with labour and employment relations. The mere fact that
Transnet is an organ of State which exercises public
power does not
transform its conduct in terminating the applicant's employment
contract into administrative action. Section 33
is not concerned with
every act of administration performed by an organ of State. It
follows therefore that the conduct of Transnet
did not constitute
administrative action under s 33.
”
26
The
conclusion that Transnet in
Chirwa’s
dismissal was not exercising administrative action as defined in PAJA
is the same conclusion reached by the minority in that case.

Similarly, the mere fact that the Municipality is an organ of state
which exercises public power does not transform its conduct
in
failing to elevate the applicant to salary level D5 into
administrative action. The conduct relates to labour and employment

relations. She has disguised her demand for an increase in salary as
a demand for the implementation of a budget provision. I
therefore
conclude that the Municipality’s action did not constitute
administrative action as defined in PAJA or under sec 33
of the
Constitution.
27
Does
the High Court have jurisdiction to determine the dispute?
[43]
I
have already found that the nature of the dispute between the
applicant and the Municipality is an employment and labour dispute.

What matters is the substance of the dispute and not what the
applicant defines it to be. The essence of the dispute relate to
the
transfer of the applicant from the Executive Mayor’s Office and her
progression in salary. Her relocation from her office
is related to
her transfer as well as her demand that she be allowed to retain her
office. Her complaint centres around the fact
that the sixth
respondent is now doing her functions, that the sixth respondent has
been progressed or promoted to level D5 from
D1 despite the fact that
there is an alleged moratorium on promotions; that she is not
provided with some work to do, and that
her transfer would amount to
a demotion. There is also a dispute as to whether she was prepared
to accept an offer of an alternative
office occupied by one
Horatius
Seekoei
and whether she was offered to take back her belongings. In my view,
her complaint relate to an unfair act or omission by the
employer
involving her promotion, demotion or provision of benefits which
conduct may potentially constitute unfair labour practice
as defined
in the LRA
28
.
Furthermore, her complaint seems to relate to a supposed
restructuring process based on the employer’s operational
requirements,
after the change in the political leadership of the
Municipality which may have an impact on the employees.
[44]
In
my view all these matters are fully provided for under the LRA regime
as well as the collective agreement applicable at local
government
level. It is common cause that the applicant is a member of the
South African Municipal Workers Union (“SAMWU”),
a representative
trade union which is a party to the collective agreement concluded
with the South African Local Government Association
(“SALGA”) (to
which the Municipality is affiliated) under the auspices of the South
African Local Government Bargaining Council
relating to the Grievance
Procedure. Admittedly, the applicant had been represented by a
shopsteward of SAMWU
(Lebakeng)
and had referred her dispute to the Bargaining Council until the
unsuccessful resolution thereof. Furthermore, the dispute that
was
referred to the bargaining council as contained in a statement
attached as Annexure DJ 1, covers all the complaints that the

applicant is having against the Municipality, including the removal
of her property from her office. The applicant is therefore
bound by
the terms and conditions of the collective agreement unless she has
obtained an exemption from the Bargaining Council.
It is not her
case that she has obtained such exemption.
[45]
On
a reading of the founding affidavit and the amplifying affidavits, as
well as the letter from her legal representative about
the failure to
reach settlement at Conciliation, and the applicant’s intention to
apply for the extension of her leave, it is
clear that the applicant
is relying on employer/employee relationship as well as the
employment contract. Her dispute, if properly
characterised relates
to salary increase, transfer or demotion. In addition her letter of
appointment to her current position
of Office Manager: Executive
Mayor’s Office states that her remuneration package will be
adjusted annually in accordance with
the National Bargaining Council
agreement. This begs the question whether her salary can be
progressed through a pure administrative
action outside what has been
agreed upon.
[46]
Counsel
for the applicant referred to section 77(3) of the BCEA as well to
the decision of the Labour Court in
Penta
Publication (Pty) Ltd v Schoombie and Others
29
in
which it was held that the Labour Court has concurrent jurisdiction
with civil courts to hear and determine any matter concerning
a
contract of employment, irrespective of whether any basic condition
of employment constituted a term of that contract. The reference

relate to the headnote on the judgment at page 1834. The
Penta
Publishing
case that I am referred to did not deal with the issues raised in
Chirwa.
In that case, the Labour Court had to consider whether it would have
jurisdiction in circumstances where the employer-employee

relationship had terminated and the LRA not conferring jurisdiction
on the Labour Court to entertain the dispute based on the contracts

of employment between the applicant and its former employees.
Finally, the applicant in this case has not made out a case in her

papers for her reliance on the BCEA.
[47]
In
conclusion, the applicant had sought redress under the machinery
provided for by the LRA. She should have proceed to finality
on the
same route. The fact that a dispute could not be resolved during
conciliation proceedings on the basis that the Municipality

representatives indicated that they had no mandate, does not mean the
end of the road under the LRA. The applicant cannot now
be heard to
say that she has instituted the dispute resolution procedures as
prescribed by the LRA and the collective agreement
and does not have
any other remedy. The Labour Court has wide powers including the
granting of orders the applicant is seeking
in this application.
30
[48]
On
the basis of
Chirwa
and
Makambi
decisions,
this Court lacks jurisdiction to entertain the applicant’s dispute.
It shall not be necessary, in the view that I
have taken of this
matter, to deal with the other points in
limine
.
It is also not necessary to consider whether, if this Court had
jurisdiction, the applicant would have been entitled to the orders

she is seeking. Various factors such as her remedy of laying
criminal charges with the police regarding her removed personal
belongings was not adequate, whether the employer can be forced by an
order of court to provide its employee with work and duties
to
perform or compel the employer to provide its employee with a
particular office to work from would play an important role.
Without
deciding these issues they are operational matters best suited to be
determined through the available labour and employment
regime.
[49]
What
remains is the issue of costs. The Constitutional Court in
Chirwa
adopted the view that Ms
Chirwa
had raised important constitutional issues and although she was
unsuccessful, found it appropriate not to award costs against her.

In
Makambi
,
the SCA adopted the view that because
Makambi
had come to court to assert what she perceived to be her rights under
the Constitution, found that no order as to costs should
have been
made against her in the High Court as well as in the SCA. I am also
inclined to adopt the same view in this matter.
I must add also that
in the Labour court the order of costs would have been made in
accordance with the requirements of the law
and fairness
31
.
In
the result it is ordered as follows:
The
rule nisi granted on 12 December 2008 is hereby discharged.
Each
party is to pay its costs.
___________________
L
P TLALETSI
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE, Kimberley
On
behalf of the Applicant:
Adv
A H Burger
Instructed
by:
Duncan
& Rothman Attorneys
On
behalf of the 5
th
Respondent:
Adv
J Y Claasen SC
Instructed
by:
Van
De Wall & Partners
Delivered: 13 March
2009
1
Act 32 of
[1811] EngR 449
;
2000
2
Act 66
of
1995
3
Act 75
if 1997
4
2008(4) SA 367; 2008(3) BCLR 251(CC)
5
When conciliation has failed, or at the end of the 30-day period or
any further period agreed between the parties-
(a) the
commissioner must issue a certificate stating whether or not the
dispute has been resolved;
(b) the Commission
must serve a copy of that certificate on each party to the dispute
or the person who represented a party in
the conciliation
proceedings; and
(c) the
commissioner must file the original of that certificate with the
Commission.
6
Section 191 prescribes the procedures for
referral of disputes about unfair dismissals and unfair labour
practices to arbitration
and the Labour Court as well as the manner
of adjudication of such disputes.
7
Act 3 of 2000
8
Para 13
9
At 382 C-D: par[47]
10
At 383 D-E; para 50
11
At 386 H-387A; para 59
12
At 388 E-F; para 64
13
2002(2) SA 693; (2002) 23 ILJ 81; 2002(2) BCLR
113(CC)
14
See para 23 above quoting the provisions of para
158(1)(h)
15
At 386 F-G; para 58
16
Sec 157(5) of the LRA
17
2008(6) BCLR 643 (CIC)
18
2002 (1)SA 49;[2002]2 All SA 295 (A); (2001) 22
ILJ 2407(SCA)
19
supra
20
2007(5) SA 450 (SCA)
21
Act 3 of 2000
22
2008(5) SA 449,[2008](SCA)
23
At 460 D-E; para 39
24
Chirwa(supra) at 426 C-D, para 174
25
Section 1 of PAJA defines administrative action
as follows:
“
In
this Act, unless the context indicates otherwise ‘administrative
action’ means any decision taken , or any failure to take
a
decision, by-
(footnote
25
continued) (a)an organ of state, when-
exercising a
power in terms of the Constitution or a provincial constitution;
or
exercising
a public power or performing a public function
in terms of any legislation;”
26
Chirwa v Transnet (supra) at 415D-G; para 142
27
See: De Villiers v Minister of Education [2009]1
ALL SA 362 (C)
28
Sec 186(2)(a) reads:
“
Unfair Labour
Practice” means any unfair act or omission that arises between an
employer and an employee involving-;”
(a) Unfair
conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason
relating
to probation) or training of an employee or relating to the
provision of benefits to an employee;”
29
(2000) 21 ILJ 1833(LC)
30
Section 158 of the LRA
31
Sec 179 of the LRA