Sibeko v Premier for the Province of the Northern Cape and Another (1672/09) [2009] ZANCHC 66; [2010] 2 BLLR 207 (NCK) (6 November 2009)

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[2009] ZANCHC 66
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Sibeko v Premier for the Province of the Northern Cape and Another (1672/09) [2009] ZANCHC 66; [2010] 2 BLLR 207 (NCK) (6 November 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
(
Northern
Cape High Court, Kimberley)
Case
no: 1672/09
Date
heard: 2009-10-23
Date
delivered: 2009-11-06
In
the matter of
:
DOCTOR
THABO MTHUNZI SIBEKO
APPLICANT
versus
THE
PREMIER FOR THE PROVINCE OF
NORTHERN CAPE
1
ST
RESPONDENT
THE
MEC: DEPARTMENT OF HEALTH,
NORTHERN CAPE 2
ND
RESPONDENT
Coram:
MAJIEDT
J
JUDGMENT
MAJIEDT J:
The Applicant, a
qualified medical doctor and previously employed as the Head of the
Department of Health in this province, seeks
the following relief in
this application:
“
1. Condoning
non-compliance with the
General
Law Amendment Act, 1995
and with the Uniform Rules of Court, pertaining to Notice, form
and/or service and directing that this application be heard as
an
urgent application.
2. That a Rule
nisi do and is hereby issued calling upon the First and Second
Respondents to show cause why an Order should not
be confirmed on the
6
TH
day
of
NOVEMBER
2009
,
in the following terms:
2.1 Declaring the termination of
the Applicant’s employment by the First and Second Respondents to
be invalid, unlawful and a
breach of his contract of employment with
the First Respondent;
2.2 That the abovementioned
decision to terminate the Applicant’s employment is hereby set
aside;
2.3 Directing the First Respondent
to reinstate the Applicant into its employment under the same terms
and conditions that applied
prior to the unlawful termination of his
contract of employment;
2.4 Interdicting the First and
Second Respondents from appointing any other person to the position
held by the Applicant as Head
of Department of the Department of
Health, Province of the Northern Cape;
2.5 Directing the First and Second
Respondents to pay the costs of this application jointly and
severally, such to include the costs
of two (2) Counsel, where
applicable;
2.6 Such further and alternative
relief as this above Honourable Court deems meet;
3. That the relief sought in
paragraphs 2.1, 2.2, 2.3 and 2.4 shall operate as interim orders
forthwith.
4. Further and alternative relief.”
The
Respondents oppose the application and have
also
raised two preliminary points, namely this Court’s lack of
jurisdiction to hear the matter and the question of urgency.
Mr.
Pillay appeared for the Applicant and Mr. Nthai SC, assisted by Mr.
Mphahlele, for the Respondents.
The salient facts, most
of which are either common cause or not seriously placed in issue,
are as follows:
The
Applicant was interviewed for the said post in July 2007 and was
appointed from 1 October 2007 (there is a dispute as to
whether he
was permanently employed in this post or not).
This
appointment was subject to certain provisions in the Public Service
Act, 103 of 1994, as amended, the Public Service Regulations
and
applicable directives as well as the Labour Relations Act (66 of
1995, “the LRA”) and Senior Management Service Handbook
(“the
SMS Handbook”).
No
contract of employment or performance agreement, as envisaged in
the Applicant’s letter of appointment, had been concluded
between
the parties.
On
20 July 2009 the Applicant, having declined a request that he
resigns, which request was made on the same date, was suspended

with immediate effect, pending disciplinary proceedings against
him.
A disciplinary hearing,
scheduled for 28 August 2009, was postponed to 21 September 2009 at
the Applicant’s request.
By
letter dated 9 September 2009, signed by both Respondents, the
Applicant’s employment was terminated with immediate effect.
The
termination was effected on the basis that since no employment
contract had ever been signed, the Applicant’s contract
with the
Department had been on a month to month basis and the employer had
decided to terminate same.
As can be gleaned from
the relief sought by the Applicant, he seeks:
to enforce his
employment contract;
to
have the decision to terminate his employment set aside; and
an interdict
prohibiting the Respondents from filling the post formerly held by
him.
The
Respondents have answered fully the Applicant’s case on the
merits, but I consider first the two preliminary issues raised
by
the Respondents.
The
Respondents submit that the matter is not urgent and stands to be
dismissed or struck from the roll. I am of the view that
events
have overtaken the question of urgency. By agreement between the
parties the matter was postponed from 2 October 2009
to 23 October
2009. The Applicant was granted an opportunity to make (as it were,
ex
post facto
)
representations regarding the termination of his employment, failing
which, agreement was reached regarding the filing of further

affidavits. As it turned out, the Applicant did not avail himself
of the opportunity to make representations. Consequently,
the
matter has been fully ventilated on the papers and the adjudication
thereof is in the interests of not only the parties,
but also of the
broader public, given that this concerns a senior post in the public
service.
The second preliminary
issue concerns this Court’s jurisdiction. In his papers the
Applicant seeks to enforce his employment
contract and he avers
that, in the absence of a fair pre-dismissal hearing, the
termination of his employment is unlawful, invalid
and a breach of
contract. The Applicant submits that this Court has the requisite
jurisdiction to hear the matter. On the other
hand, the Respondents
have adopted the stance that the Applicant is actually alleging an
unlawful dismissal and this Court does
not have jurisdiction in view
of the provisions in sec 157(1) and sec 158 of the LRA.
Section 157 of the LRA
reads as follows:
“
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.”
The
decisions of the Constitutional Court in
Fredericks
and others v MEC for Education and Training, Eastern Cape and others
2002(2)
SA 693 (CC) and in
Chirwa
v Transnet Ltd and Others
2008(4) SA 367 (CC), have led to a great jurisprudential divide
in various Courts of our country relating to the meaning
and effect
of these decisions. Recently, in an as yet unreported decision of
that Court,
Gcaba
v Minister of Safety and Security and Others
,
case no CCT 64/08,
[2009] ZACC 26
, delivered on 7 October
2009, Van der Westhuizen J, writing for an unanimous Court,
sought to finally dispel conflicting
opinion on the matter.
Intriguingly, both Mr. Pillay and Mr. Nthai SC rely on this latest
judgment to support their respective
contentions.
In
Fredericks
,
O’Regan J, writing for an unanimous Court, approved the
decision in
Fedlife
Assurance Ltd v Wolfaardt
2002(1) SA 49 (SCA) at par. [25] that “
section
157(1) does not purport to confer exclusive jurisdiction upon the
Labour Court generally in relation to matters concerning
the
relationship between employer and employees
”
(per Nugent JA).
In
Fedlife
,
the Court was seized with the issue whether the High Court had
jurisdiction to adjudicate a claim for damages arising from breach

of a contract of employment. The majority (per Nugent AJA),
pertinently considered the provisions of sec 157(1) of the
LRA
and came to the conclusion that the claim for damages can indeed be
adjudicated in the High Court. At par. [27] of the judgment,
Nugent
AJA held that:
“
[27] Whether
a particular dispute falls within the terms of s 191 depends upon
what is in dispute, and the fact that an unlawful
dismissal might
also be unfair (at least as a matter of ordinary language) is
irrelevant to that enquiry. A dispute falls within
the terms of the
section only if the 'fairness' of the dismissal is the subject of
the employee's complaint. Where it is not,
and the subject in dispute
is the lawfulness of the dismissal, then the fact that it might also
be, and probably is, unfair, is
quite coincidental for that is not
what the employee's complaint is about. The dispute in the present
case is not about the fairness
of the termination of the respondent's
contract but about its unlawfulness and for that reason alone it does
not fall within the
terms of the section (even assuming that the
termination constituted a 'dismissal' as defined in chap 8). In those
circumstances
the respondent's action is not a 'matter' that is
required to be adjudicated by the Labour Court as contemplated by s
157(1) and
the special plea was correctly set aside.”
In a
dissenting judgment in
Fedlife
,
Froneman AJA emphasized the pre-constitutional rigid distinction
between a common law contract of employment and a statutory
labour
dispensation or put differently, the distinction between lawfulness
and fairness. This is best illustrated by the following
dictum
of Nienaber JA in
National
Union of Mineworkers of SA v Vetsak Co-operative Ltd and Others
1996(4) SA 577 (A) at 591 F-H (cited by Nugent AJA in
Fedlife
):
“
The most one
can do is to reiterate that there are two sides to the inquiry
whether the dismissal of a striking employee is an unfair
labour
practice, the one legal, the other equitable. The first aspect is
whether the employer
was entitled, as a matter of common law, to terminate the contractual
relationship between them - and that would depend, in the
first
place, on the seriousness of its breach by the employee. The second
aspect is whether the dismissal was fair - and that would
depend on
the facts of the case. There is no sure correspondence between
lawfulness and fairness. While an unlawful dismissal would
probably
always be regarded as unfair (it is difficult to conceive of
circumstances in which it would not), a lawful dismissal
will not for
that reason alone be fair”.
The
learned Judge then proceeded to discuss the effect which the
Constitution has had on our common law of employment. Whilst
the
employee (respondent) had framed his claim along the lines of breach
of contract by the employer (appellant) in the form of
an unlawful
anticipatory repudiation (which was accepted by the employee),
Froneman AJA took the view that the facts of the
case place the
employee squarely within the ambit of a dispute concerning the
fairness of the dismissal. Consequently, so the
learned Judge held,
sec 191(1) of the LRA would find application. He explains it
thus at par. [10]:
“
[10]
Is
the present dispute a dispute about an unfair dismissal? It certainly
appears to me to be the case. In ordinary terms, untrammelled
by
legal interpretation, it seems unfair that one party to a bargain
should be allowed to go back on his word by dismissing someone
before
the promised time for the termination of his contract of employment
arrives. Nienaber JA gave expression to that underlying
sentiment
when, in National Union of Metalworkers of SA v Vetsak Co-operative
Ltd (above para [3]) he noted that it is difficult
to conceive of
circumstances where an unlawful dismissal would not also be unfair. I
have already indicated that, in my view, the
right not to be unfairly
dismissed is a particular concretised form of the constitutional
right to fair labour practices. If that
premise is correct then one
can only argue that the present dispute is not one about an unfair
dismissal if the provisions of the
Act do not comprehensively deal
with this constitutional right and if the right not to be unfairly
dismissed does not form part,
in any way, of the common-law contract
of employment. In my view, that is not the case in either instance.”
With
reference to the
dictum
of Nienaber JA in
Vetsak
,
quoted above, Froneman AJA concluded that it would not easily
be conceivable that an unlawful dismissal would also not
be unfair,
in which instance such a dismissal would fall squarely within the
ambit of sec 191(1) of the LRA. He expressly
held that
“
(d)ismissal
upon an unlawful breach of contract by an employer is an unfair
dismissal.
And
the Act deals fully with the consequences of an unfair dismissal”
(at
par. [14], 66 I).
Froneman AJA
consequently
held that the Labour Court has exclusive jurisdiction to adjudicate
the dispute in terms of sec 157(1) of the
LRA.
I
have discussed the
Fedlife
case at some length, because the present matter is in my view quite
similar in many respects. It is common cause that, if the
Applicant
had indeed been permanently appointed, his employment contract would
have been for a fixed term of five years. The
Applicant’s attack
is primarily directed at the termination of his employment contract
in the absence of a pre-dismissal hearing.
It is common cause that
no such hearing had been held. The nub of the dispute is therefore:
is this merely an allegedly unlawful
breach of an employment
contract in the form of an unlawful anticipatory repudiation or is
it an allegedly unfair dismissal?
The Applicant says it is the
former (and has pertinently pleaded it thus in his papers), whereas
the Respondents say it is the
latter. In my view it can be
categorised as both an allegedly unlawful breach of contract and an
allegedly unfair dismissal.
I
have already cited in paragraph 11 above the
dictum
of
Nugent AJA in
Fedlife
at para [17]. As alluded to above, Froneman AJA’s dissenting view
is based on the contrary view, namely that any unlawful
dismissal
would conceivably always also be unfair, thus placing the matter
within sec 191(1) and within the exclusive jurisdiction
of the
LRA (sec 157(1)).
In
Fredericks
,
supra,
the
matter concerned a challenge to the refusal of educators’
applications for voluntary severance packages (i.e. a matter falling

within the sphere of employment relations). The challenge was based
on a range of constitutional grounds. The Constitutional
Court
unanimously held that the High Court had the requisite jurisdiction
to adjudicate the matter.
The
abovementioned approach enunciated by the majority in
Fedlife
and the full Court in
Fredericks
has been followed in a number of High Court and Supreme Court of
Appeal (“SCA”) decisions. For purposes of this judgment,
I make
mention of only two of those, since Mr. Pillay relies fairly heavily
on them:
Boxer
Superstores Mthatha and Another v Mbenya
2007(5) SA 450 (SCA);
Old
Mutual Life Assurance
Co
SA Ltd v Gumbi
2007(5) SA 552 (SCA).
The
Boxer
Superstores
matter is by far the more relevant one in this instance. In that
matter, the SCA (per Cameron JA) held that an employee can sue
in the
High Court for relief on the basis of unlawful dismissal, provided
that the employee’s claim is formulated in terms of
contractual
unlawfulness rather than unfairness. In
Gumbi
,
supra
,
the SCA (per Jafta JA) confirmed that an employee is entitled to a
pre-dismissal hearing.
The
law appeared to be fairly well settled, namely that the High Court
does have jurisdiction to adjudicate a dispute over the
alleged
unlawful termination of an employment contract, until the
Chirwa
decision
supra
.
In
Chirwa
the employee first referred an alleged unfair dismissal to the
Commission for Conciliation, Mediation and Arbitration (“the

CCMA”) and, when the matter was supposed to be referred for
arbitration, she approached the High Court for a review of the

decision to dismiss her and for reinstatement. She contended that
she had two causes of action available to her: one for unfair

dismissal under the LRA and another flowing from the Constitution
(the right to just administrative action), read with the Promotion

of Administrative Justice Act, 13 of 2000 (“PAJA”) and that the
High Court therefore has concurrent jurisdiction with the
Labour
Court in respect of her claim. Her contentions were upheld in the
High Court, but an appeal by the employer to the SCA
was successful.
The Constitutional Court confirmed the SCA decision. It held that
the employee’s claim that she had been
unfairly dismissed because
her disciplinary hearing was not conducted fairly, raised a dispute
within the meaning envisaged by
sec 191(1) of the LRA, which
could only be adjudicated by the Labour Court exclusively. Skweyiya
J held that:
“
Where an
alternative cause of action can be sustained in matters arising out
of an employment relationship, in which the employee
alleges unfair
dismissal or an unfair labour practice by the employer, it is in the
first instance through the mechanisms established
by the LRA that the
employee should pursue her or his claims.”
(at
par. [41]).
In a
separate, concurring judgment, Ngcobo J focused on the scope of
operation of sec 157(1) and (2) of the LRA. The
learned Judge
had a contrary view to that espoused in
Boxer
Superstores
at par. [5 ii] and also in
United
National Public Servants Association of SA v Digomo NO and Others
(2006) 26 ILJ 1957 (SCA), namely that, provided the employee’s
claim as formulated does not purport to be one that falls
within the
exclusive jurisdiction of the Labour Court, the High Court has
jurisdiction even if the claim could have been formulated
as an
unfair labour practice. Ngcobo J expressed his reservations
with this approach as follows:
“
The
difficulty with this view is that it leaves it to the employee to
decide in which court the dispute is to be heard. By characterising

the manner in which the disciplinary hearing was conducted as unfair
dismissal, the employee could have the dispute heard in the
Labour
Court. Yet by characterising the same dispute as constituting a
violation of a constitutional right to just administrative
action,
the employee could have the same dispute heard in the High Court. It
could not have been the intention of the legislature
to bring about
this consequence.”
(at
par. [92]).
In
the present matter Mr. Pillay has argued with some force that since
the Applicant’s claim is formulated as a breach of an
employment
contract, this
Court
has jurisdiction to hear the matter. For this submission, he relies
strongly on,
inter
alia,
the
Boxer
Superstores
decision,
where Cameron JA alluded to the fact that the employee has
“…
.
formulated her claim carefully to exclude any recourse to fairness,
relying solely on contractual unlawfulness”
(at par. [12]).
Mr.
Pillay has also placed much reliance on the minority judgment of
Langa CJ in
Chirwa
,
where the learned Chief Justice pointed out that:
“…
. the
substantive merits of a claim cannot determine whether a court has
jurisdiction to hear it”
(at par. [155]).
On
this approach, a Court is required to
“
ass
ess
its jurisdiction in the light of the pleadings
”
(at
par. [169]).
See
also:
Fraser
v Absa Bank Ltd (National Director of Public Prosecutions as
amicus
curiae
)
2007(3)
SA 484 (CC).
In
Gcaba
,
supra
,
Van der Westhuizen J endorsed this approach (at par. [75]).
This is a convenient juncture to discuss in more detail the
Gcaba
decision.
In
Gcaba
Van der Westhuizen J referred to the divergence of opinion
following upon
Fredericks
and
Chirwa
.
Some Courts expressed the view that
Chirwa
had overruled
Fredericks
.
Differing interpretations of
Chirwa
followed. Somewhat unusually, in
Makhanya
v University of Zululand
[2009] 4 All SA 146
(SCA), Nugent JA sought to qualify the
ratio
decidendi
of the judgment in
Chirwa
.
According to him, the case did not concern the High Court’s
jurisdiction at all, but rather involved a finding whether the

employee’s claim is bad in law. Consequently, so the learned
Judge held, the SCA is not bound by
Chirwa
with regard to its dictum on jurisdiction. Nugent JA held (and
Lewis and Snyders JJA concurred) that the employee’s claim,

formulated in the particulars of claim as the enforcement of an
employment contract, can be adjudicated in the High Court. In
Makambi
v MEC for Education, Eastern Cape
2008(5) SA 449 (SCA) Nugent JA had deliberated on the same
issue and had raised similar concerns on the interpretation
of the
Fredericks
and
Chirwa
judgments.
Into
this swirling dust of obfuscation, stepped Van der Westhuizen J
in
Gcaba
.
Having acknowledged the confusing divergent views on the proper
interpretation and application of overlapping constitutional,

administrative and labour law provisions, particularly in the sphere
of disputes between public sector employees and their employer,
Van
der Westhuizen J saw
Gcaba
as:
“…
an
opportunity to provide some clarity and guidance, based on a proper
interpretation of the relevant provisions of the Constitution,
the
(LRA) and (PAJA)”
–
see par. [3].
After
a detailed discussion of
the
various decisions, in particular
Fedlife
,
Chirwa
and
Makhanya
,
the learned Judge concluded that
Chirwa
did not in fact “
overrule
”
Fredericks
,
but that the two decisions are consistent in its findings, based on
its particular set of facts. In particular, Van der Westhuizen J

expressed the view that the point decided in
Chirwa,
namely
that the employer’s decision to dismiss the employee did not
amount to administrative action, had been left open in
Fredericks.
Mr.
Nthai
SC has submitted that on the Applicant’s papers, regardless of its
purported formulation of the claim as the enforcement
of a contract
of employment, the relief which the Applicant seeks amount to the
assertion of a claim based on unfair dismissal
under the LRA. Thus,
he contends, it is a matter to be adjudicated in the Labour Court.
Mr. Pillay on the other hand has contended
that the nature of the
dispute must be assessed on the pleadings, that the Applicant has
carefully and deliberately framed his
claim as the enforcement of an
employment contract and that consequently, this Court has
jurisdiction to adjudicate the matter.
It is
of some significance that the Applicant himself declares in par. 5.4
of his founding affidavit that “
the
issue of my suspension is best dealt with through the Labour
Relations Act”
.
The question which immediately arises is – how is his dismissal
(which he avers is unfair in the absence of a pre-dismissal
hearing)
different from his suspension? Why is the dismissal (or, in his
nomenclature, the termination of his employment contract)
not also
best dealt with through the LRA? The answer to these questions is
formulated thus by the Applicant in his founding
affidavit in the
sentence immediately following upon the abovequoted extract:
“
I have
approached this Honourable Court to enforce the contractual rights I
am afforded by virtue of my contract of employment,
which can only be
done through this Honourable Court. There is no reason for me to
approach the CCMA, Bargaining Council and/or
the Labour Court.”
When
pressed
on this aspect during argument, Mr. Pillay provided the same
explanation in broad terms, which I find rather unpersuasive.
Mr.
Pillay is undoubtedly correct in his submission that
Makhanya
is the latest in a long line of cases which supports his argument
that the High Court has the requisite jurisdiction to enforce
common
law contractual rights, including employment contracts. But has
Chirwa
and/or
Gcaba
changed that? Mr. Nthai SC has argued forcefully that they have.
It is
plain that the majority in
Chirwa
ruled that the Labour Court has exclusive jurisdiction in that
instance. Skweyiya J made it clear that in instances where
an
alternative cause of action may exist in matters arising out of an
employment relationship (i.e. alternative to the LRA processes),
in
which an employee alleges unfair dismissal or an unfair labour
practice by the employer, the mechanisms established by the
LRA
should be such an employee’s first port of call;
See:
Chirwa
,
supra
,
at par. [41], 380 D-E.
Ngcobo J expressed
similar views, stating that:
“
Therefore, I
am unable to agree with the view that a public sector employee, who
challenges the manner in which a disciplinary hearing
that resulted
in his or her dismissal (was held), has two causes of action, one
flowing from the LRA and another flowing from the
Constitution and
PAJA”
(at par. [149], 417 G-H).
The
learned Judge also warned against “
forum-shopping
”,
i.e. choosing another forum when the shoe pinches in one forum.
These
views
were
endorsed in broad terms by Van der Westhuizen J in
Gcaba
(compare,
inter
alia
,
paragraphs [56] and [57] of the judgment). The following
dictum
of the learned Judge is particularly instructive in the present
matter:
“
[75]
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa, and not the substantive merits of the case.
If Mr Gcaba’s
case were heard by the High Court, he would have failed for not
being able to make out a case for the relief
he sought, namely
review of an administrative decision. In the event of the Court’s
jurisdiction being challenged at the outset
(in limine), the
applicant’s pleadings are the determining factor. They contain
the legal basis of the claim under which the
applicant has chosen to
invoke the court’s competence. While the pleadings – including
in motion proceedings, not only the
formal terminology of the notice
of motion, but also the contents of the supporting affidavits –
must be interpreted to establish
what the legal basis of the
applicant’s claim is, it is not for the court to say that the
facts asserted by the applicant would
also sustain another claim,
cognisable only in another court.
If
however the pleadings, properly interpreted, establish that the
applicant is asserting a claim under the LRA, one that is to
be
determined exclusively by the Labour Court, the High Court would
lack jurisdiction.
”.”
(emphasis
added).
In
this matter the Applicant’s cause of complaint as set out in his
founding affidavit is the lack of a pre-dismissal hearing,
as is
required by law in the case of fixed term contracts. Put
differently, he is alleging an unfair dismissal thus asserting
a
claim which really should fall under the LRA mechanisms. In my view
it matters not that the Applicant calls his claim
“
the
enforcement of an employment contract
.”
In
Makambi
,
supra
,
Nugent JA puts it as follows:
“
But things
cannot be made to be what they are not merely by calling them
something else and that applies as much to legal claims
as to other
things.”
(at par
[32], 458 E).
See
also:
Modutte
v The Municipal Manager: Sol Plaatje Municipality and Others
,
unreported, Northern Cape High Court, case number 1637/08, delivered
on 13 March 2009 (Tlaletsi J), at par [42].
A
close scrutiny of the pleadings and a proper interpretation thereof
leads me to the inescapable conclusion that this matter belongs
in
LRA forae and not in this Court. I am fortified in this conclusion
by the fact that, as was the case in
Chirwa
and
Gcaba
,
the Applicant had first submitted himself to an internal (labour)
process, i.e. the disciplinary hearing, before turning to this
Court,
while that internal process was still pending. It is striking that
he did not at the outset approach this Court for relief
if his cause
of action was purely contractual in nature as he avers now.
Moreover, this view is further fortified by sec 17
of the Public
Service Act, Proc 103 of 1994, expressly which provides that”
“…
the power to dismiss an
employee shall vest in the relevant executive authority and shall be
exercised in accordance with the Labour
Relations Act”.
It is
common cause that the Applicant’s employment is governed by,
inter
alia,
the Public Service Act.
I
am acutely aware that the aforegoing conclusion is directly in
conflict with the decision in
Makhanya
.
In my view, Nugent JA with respect, erred in seeking to
distinguish
Chirwa
in order to avoid the
stare
decisis
principle. Moreover,
Gcaba
firmly re-establishes the principles enunciated by the majority in
Chirwa
.
It is rather unusual but, with respect, understandable that Van der
Westhuizen J concludes his judgment as follows in
par. [77]:
“
[77] As stated earlier, this
Court’s decision in Chirwa has been interpreted to have “overruled”
its previous decision in
Fredericks, but also as not to have done so.
This term was not used in Chirwa, however. The distinction between
the two cases
was pointed out, as indicated earlier. In this
judgment the relevant factual and procedural similarities and
differences between
Fredericks, Chirwa and Gcaba are highlighted. To
the extent that this judgment may be interpreted to differ from
Fredericks or
Chirwa, it is the most recent authority”.
In
holding that the employee in
Gcaba
should
have proceeded in the Labour Court, Van der Westhuizen J makes
the following observation at par [76]:
“
The applicant’s complaint was
essentially rooted in the LRA, as it was based on conduct of an
employer towards an employee which
may have violated the right to
fair labour practices.”
The position is exactly
the same in the present matter.
After judgment had been
reserved, the Applicant’s attorneys sought leave to place before
me a judgment by Hollis AJ in
the Kwazulu-Natal High Court,
Pietermaritzburg handed down on 23 October 2009 (i.e. the date on
which the matter was heard before
me). Despite the Respondents’
attorneys’ objection, I acceded to the request and granted the
parties an opportunity to file
supplementary heads of argument on
this new judgment only. The Respondents have filed brief
supplementary Heads of Argument,
but the Applicant have not.
In the said judgment,
Mannya
v Premier for the Province of Kwazulu-Natal & Another
,
case no 6309/2009, Hollis AJ had to adjudicate on an
application of an employee for an interdict pending review
proceedings
to be instituted against the second respondent in that
matter (the second respondent was the chairperson of a disciplinary
inquiry
against the employee/applicant instituted by the
employer/first respondent). The Court had to decide,
inter
alia
,
the question of jurisdiction and also whether the employee/applicant
can have a decision reviewed outside the parameters of
PAJA.
Hollis AJ found for the employee/applicant on both these
issues. It is of course the decision on the first issue,
relating
to jurisdiction, which is germane in the present matter. For the
reasons that follow I am of the view that this judgment
does not
assist the Applicant herein at all.
Firstly I consider the
facts in the present matter to be distinguishable on the facts. In
Mannya
,
the employee/applicant had not been dismissed. The application for
an interdict
pendente
lite
was premised on challenging in the main (review) application the
fairness of the disciplinary hearing (and more particularly
the
presiding officer’s [2
nd
respondent’s] alleged bias). In the present matter the cause of
complaint is a dismissal without a prior hearing.
Even if I am wrong in
the aforegoing conclusion, I am of the view that Hollis AJ is,
with respect, wrong in his findings.
His
ratio
decidendi
is that the employee/applicant’s cause of action is founded upon
the enforcement of a tacit term relating to his employment
contract
(i.e. that a
fair
disciplinary hearing should precede his dismissal). This finding
was made, notwithstanding the fact that the employee/applicant
made
reference in the founding affidavit to the provisions of the LRA,
the Constitution and PAJA. Hollis AJ relied on
Makhanya
and also on
Transman
(Pty) Ltd v Dick and Another
2009(4) SA 22 (SCA), per Jafta JA, where the learned Judge
held as follows at par. [18], 29 F-H:
“
[18] It is important to note
that in Chirwa the Constitutional Court deprecated the proposition
that civil servants have two causes
of action, but only insofar as
the second cause of action is based on s 33 of the Constitution or
the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). The
decision in Chirwa prohibits the use of review process in challenging
the validity of a dismissal
from employment.
What
this means is that a cause of action based on a contractual breach is
still permissible
.
But for purposes of determining jurisdiction the fact that
incompetent relief is sought is immaterial. Such enquiry does not

entail the outcome of an adjudicative process. The issue that is
essential to the enquiry is whether the court has authority to

adjudicate a particular dispute. The incompetence of the claim made
in the present case, therefore, plays no part in the determination
of
the High Court's jurisdiction. As stated earlier, the employee has
instituted review H proceedings over which the High Court

unquestionably has jurisdiction.”
(emphasis
added).
Jafta JA referred to
Fedlife
for support of the proposition highlighted above. Not only is this
part of the
dictum
which I
have highlighted in my view
obiter
(the matter concerned a review, not the enforcement of a contractual
claim), but it also respectfully seems to me to be in conflict
with
the dictae in
Chirwa
and
Gcaba
to the effect that the pleadings must be properly interpreted to
ascertain what the actual claim is which the litigant asserts.
If the Applicant’s
contentions are to be upheld and if Hollis AJ is correct in
Mannya
,
it means that a litigant can simply approach Court and call his/her
claim by another name to avoid the LRA mechanisms, whereas
in truth
and in fact the claim is one governed by the LRA. Surely the law
cannot countenance such semantic subterfuge. This
is exactly what
Skweyiya J and Ngcobo J cautioned about in
Chirwa
,
endorsed by Van der Westhuizen J in
Gcaba
.
I am therefore not persuaded that
Mannya
supports the Applicant’s case.
It follows that the
objection
in
limine
concerning this Court’s lack of jurisdiction is good in law and it
ought to be upheld.
The aforementioned finding makes it unnecessary to consider the
merits. I am, however, constrained by the papers before me to
make
the observation that it seems to me a quite startling proposition
that the Applicant can be said to have been on a month
to month
employment contract. In my
prima
facie
view
this stance is strongly controverted by not only clause 6.3 of the
SMS Handbook (which envisages a fixed term of 5 years
for Heads of
Departments), but also by the general probabilities.
In
summary and in conclusion: this dispute
concerns
an alleged unfair dismissal and belongs exclusively in the LRA
forae. This Court lacks the requisite jurisdiction by
reason of the
provisions in sec 157(1) of the LRA.
As to
the costs, while the matter was of a certain measure of complexity,
the
Gcaba
decision clarified the legal position considerably and the
employment of two Counsel by the Respondent is a luxury which the

Applicant should not be required to pay for.
The application is
dismissed with costs, including the costs of 2 October 2009.
_____________
SA MAJIEDT
JUDGE
ADV
I PILLAY FOR THE APPLICANT
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