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[2008] ZAWCHC 58
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De Villiers v Minister of Education Western Cape Province and Another (18733/2007) [2008] ZAWCHC 58; 2009 (2) SA 619 (C) ; [2009] 1 All SA 362 (C); (2009) 30 ILJ 1022 (C) (29 October 2008)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
Reportable
Case
No:
18733/2007
In the matter between:
ANDRE
JOHANN DE VILLIERS
APPLICANT
and
THE
MINISTER OF EDUCATION
FIRST
RESPONDENT
WESTERN
CAPE PROVINCE
THE
HEAD OF DEPARTMENT: EDUCATION
SECOND
RESPONDENT
WESTERN
CAPE PROVINCE
JUDGMENT
DELIVERED 29 OCTOBER 2008
Davis and Allie JJ
[1] The
applicant has brought an application to review the decision of the
second respondent not to reinstate him in terms of
Section 14(2)
of
the
Employment of Educators Act No 76 of 1998
. The application is
brought in terms of Section 6 of the Promotion of Administrative
Justice Act No 3 of 2000 (PAJA).
[2] Briefly
the background to this application can be summarised thus: On 13
October 2003, applicant was suspended from service,
pursuant to
charges of sexual harassment brought against him. On 3 November
2004, he was found guilty at a disciplinary hearing,
which had been
conducted in his absence, on charges of sexual harassment,
crimen
injuria
and an alleged contravention of the rules relating to housing
subsidies in that it had been found that he rented out property
in
respect whereof he had received a housing subsidy.
[3] On
28 February 2006, Ms Singh-Bhoopchand who had been appointed as an
arbitrator, delivered an award in which she found that
the dismissal
of applicant had been procedurally and substantially unfair. She
thus ordered that second respondent reinstate
applicant on the same
terms and conditions as those which had applied to his employment
immediately prior to his dismissal.
[4]
On 1 August 2006, second respondent instructed the applicant to
report for duty at Elswood Secondary School in Elsies River.
On the
advice of his trade union that the instruction had contravened the
terms of the ‘Bhoopchand’ award, applicant
failed to take
up this appointment. He was subsequently deemed to have been
discharged in terms of section 14(1) of the Employment
of Educators
Act 76 of 1998 (the ‘Act’) in that he had failed to
report for duty for a period exceeding 14 consecutive
days. In
terms of section 14(2) of the Act he applied to second respondent for
reinstatement but exercising his discretion, second
respondent
declined to reinstate applicant. This application is now brought
in terms of the provisions of section 6 (2) of PAJA
in respect of
second respondent decision to decline to reinstate the applicant.
In limine
objection:
[5] Second
respondent has raised the objection that this court lacks the
necessary jurisdiction to consider the matter in as much
as the
second respondent’s decision not to reinstate the applicant in
terms of section 14(2) of the Act was taken in his
capacity as
applicant’s employer in terms of section 3 (1) (b) of the Act.
Accordingly, the impugned decision relates to
the employment
relationship between second respondent and applicant and does not
constitute administrative action in terms of PAJA
as the decision was
not taken as an exercise of a public power by an organ of State.
Thus, the question of jurisdiction requires
determination before any
examination of the merits can take place. In short, respondents
contend that this dispute falls to be
determined by reason of the
provisions of the Labour Relations Act 66 of 1998 (‘LRA’)
and thus this court has no jurisdiction
to hear a dispute, which
stands properly to be heard by the Labour Court.
[6]
Most recently the scope of PAJA and its relationship to the LRA has
been examined by the Constitutional Court in
Chirwa
v Transnet Limited and others
[2007] ZACC 23
;
2008 (3) BCLR 251
(CC).
Applicant had been dismissed by her former employer. Transnet
Limited. She then referred the dispute to the Commission for

Conciliation, Mediation and Arbitration (‘CCMA’) alleging
that her dismissal was procedurally unfair. When conciliation

failed to resolve the dispute she did not pursue arbitration of the
dispute through the CCMA but approached the High Court on the
basis
that the dismissal had violated her constitutional right to fair
administrative action as contemplated in PAJA. The High
Court held
that the dismissal was unfair and ordered reinstatement. The matter
went on appeal to the Supreme Court of Appeal
where a majority upheld
the appeal on the basis that the applicant’s dismissal did not
fall to be reviewed under the provisions
of PAJA.
[7] The
matter then reached the Constitutional Court. The majority of that
court decided that the Constitution (Republic of South
Africa
Constitution Act 108 of 1996) drew a distinction between a right to
administrative action (section 33 of the Constitution)
and the right
to fair labour practises (section 23 of the Constitution) together
with the laws giving effect to both, being in
the case of section 33,
PAJA, and in the case of section 23, the LRA. The court held that
the right to fair administrative action
as embraced in section 33 did
not deal with employment and labour relations because these matters
had been comprehensively protected
under section 23 of the
Constitution. On this basis, an employee in the public service no
longer has a choice between a cause
of action based on the LRA and on
PAJA. Hence, such an employee cannot circumvent the dispute
procedures which were set out in
LRA.
[8] In
a somewhat controversial finding, Froneman J, in
Nakin
v MEC The Department of Education Eastern Cape Province and another
[2008] JOL 21
482 (CK)
declined to follow
Chirwa
and relied on an earlier decision of the Constitutional Court in
Fredericks
and others v MEC of Education and Training Eastern Cape and others
[2001] ZACC 6
;
2002 (2)
SA 693
(CC)
.
Froneman J was faced with the following dispute. Applicant lost his
post as school principal. Instead of being transferred
to another
post at the same level as he was entitled to be, the applicant was
transferred to a post which carried a lesser status,
which resulted
in a lower salary and other benefits. Although the Department of
Education approved a recommendation that the
applicant be reinstated
to his former post, that recommendation was not implemented. The
applicant therefore sought the review
of the failure not to give
effect to the recommendation and ancillary relief.
Hence
the question of jurisdiction arose. The court, after a careful
analysis of the judgment in
Chirwa
and
Fredericks
held that the approach adopted in
Fredericks
had to be applied. Froneman J reasoned this:
“
At
the very least the fundamental constitutional values of human
dignity, the achievement of equality and the advancement of human

rights and freedom underlie the application of the constitutional
section 33 right to just administrative action, the constitutional

section 33 right to fair labour practices, and the possible
application of these rights in the direct or indirect development of

the common-law contract of employment under either section 8 or 39
(2) of the Constitution, in whatever court this might happen.

Fairness in public employment may conceivably have a different
content to that in the private sector, for reasons relating to

constitutional demands of responsiveness, public accountability,
democracy and efficiency in the public service. From that
perspective,
the substantive coherence and development of employment
law can only gain from insights derived from administrative law
concerns.”
Accordingly,
the learned judge concluded:
“
The
applicant seeks relief in the present matter 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. He does not rely on any allegation of unfairness under
the LRA as the cause of his application. On authority of
Fredericks
the High Court has jurisdiction to determine whether, on the merits,
he does have a claim based on alleged unlawful administrative

action.” (
At
para 39)
[9] In
the light of this judgment it becomes necessary to analyse the
judgment in
Fredericks
as well as the factual matrix on which it was predicated.
[10] In
Fredericks
the
applicant teachers challenged the MEC’s refusal to accept their
applications for voluntary retrenchment under a collective
agreement.
Their cause of action was expressly predicated on a violation of
the right to administrative action as well as the
right to equality.
It was not based on any contravention of section 23 of the
Constitution. The MEC opposed the application
on the basis that the
Labour Court enjoyed exclusive jurisdiction in all employment and
labour matters. Accordingly, a dispute
over the interpretation or
the application of a collective agreement had to be determine in the
first place by the CCMA and then
by the Labour Court. The
Constitutional Court held that the Labour Court did not have
exclusive jurisdiction in respect of all
employment and labour
matters and that its exclusive jurisdiction to review the CCMA’s
decision in respect of collective
agreements did not constitute an
assignment of a constitutional matter arising from such an agreement
to that court under section
169 of the Constitution, which should be
read with section 157 (2) of the LRA.
[11] Section
169 of the Constitution reads:
A
High Court may decide-
(a) any
constitutional matter except a matter that-
(i) only
the Constitutional Court may decide; or
is
assigned by an Act of Parliament to another court of a status
similar to a High Court; and
.
(b) any
other matter not assigned to another court by an Act of Parliament
Section
157 of the LRA reads:
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.
[12] In
essence, the court in
Fredericks
held that when the application of a collective agreement (in this
case the MEC’s refusal to accept that applications were

voluntarily retrenchment fell under the collective agreement) amounts
to a contravention of the right to equality and to fair
administrative action and that, further, labour rights under section
23 of the Constitution are not implicated, then any decision
which
applies to a collective agreement constitutes a constitutional matter
which can be entertained by the High Court in terms
of section 169 of
the Constitution read together with section 157 (2) of the LRA.
[13
] The
following passage from the judgment of O’ Regan J in
Fredericks
is of particular importance to the present dispute:
“
[I]n
this case the applicant is expressly disallowed any reliance to
section 23 (1) of the Constitution, which entrenches the right
to
fair labour practices. The preamble to the Labour Relations Act
makes it plain that the purpose of the Act is to give it statutory

effect to this right the question therefore does not arise in this
case that the dispute arising or of the interpretation or application

of
collective
agreement gives rise to a constitutional complaint in terms of
section 23 (1) that question raises difficult issues of

constitutional interpretation that we need not address now.”(para
34)
[14
] It
is now possible to review the two cases and seek a reconciliation,
given that the Constitutional Court in
Chirwa
did not overrule its finding in
Fredericks
.
The majority judgment in
Chirwa
answers
the issue which was expressly left open in
Fredericks’,
namely the position where section 23 of the Constitution can be
directly implicated in the dispute. In
Chirwa,
the
court found that the right to fair labour practice contained in
Section 23 of the Constitution was separate and distinct from
the
right to just administrative action contained in Section 33 of the
Constitution. In considering the applicability of Section
33 Ngcobo
J said:
“[t]he
conduct of
Transnet
in terminating the applicant’s employment contract involves the
exercise of public power is not decisive of the question
whether the
exercise of the power in question constitutes administrative action.
The question whether particular conduct constitutes
administrative
action must be determined by
reference
to Section 33 of the Constitution.”
(at
para 139)
[15]
Relying on the approach adopted earlier by the Constitutional Court
in the
President
of the Republic of South Africa v SA Rugby Union
2000 (1) SA 1
(CC)
Ngcobo J went on to find:
“
The
subject matter of the power involved here is the termination of
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.”
(
para 142)
[16] Professor
Cheadle, Labour Relations in Cheadle
et
al
,
South
African Constitutional Law: The Bill of Rights
18-11, relies on an article written by Judge O’ Regan
(2004
(121) SALJ 424)
to contend that, in cases which would have been
decided under the scope of administrative law prior to 1994, a change
has occurred
as a result of our constitution that they now fall under
fundamental rights other than the right to administrative law, as the
right to equality for instance, and to that extent no longer form
part of administrative law. Contrary to Froneman J’s
approach, Cheadle contends, where rights overlap, the proper right to
resort to in each case is the more specific one. Where rights
share
the same values as fairness does in the right of equality, right to
fair labour practices and fair administrative action,
the courts have
to locate the primary constitutional breach in the more specific
right as was the case in the majority judgment
in
Chirwa.
Cheadle
at pg 18-19
The
present application
[17] With
this background in mind, we now turn to an analysis of the present
application which is concerned with an applicant who
contends that
there is good cause shown for his reinstatement. The dismissal
which triggered this application for reinstatement
took effect in
terms of
Section 14(1)
of the
Employment of Educators Act. Section
14 reads as follows:
14 Certain
educators deemed to be discharged
(1)
An educator appointed in a permanent capacity who-
(a) is
absent from work for a period exceeding 14 consecutive days without
permission of the employer;
(b) while
the educator is absent from work without permission of the employer,
assumes employment in another position;
(c) while
suspended from duty, resigns or without permission of the employer
assumes employment in another position; or
(d) while
disciplinary steps taken against the educator have not yet been
disposed of, resigns or without permission of the employer
assumes
employment in another position,
shall,
unless the employer directs otherwise, be deemed to have been
discharged from service on account of misconduct, in the
circumstances
where-
paragraph
(a) or (b) is applicable, with effect from the day following
immediately after the last day on which the educator
was present at
work; or
(ii) paragraph
(c) or (d) is applicable, with effect from the day on which the
educator resigns or assumes employment in another
position, as the
case may be.
(2)
If an educator who is deemed to have been discharged under paragraph
(a) or (b) of subsection (1) at any time reports for duty,
the
employer may, on good cause shown and notwithstanding anything to the
contrary contained in this Act, approve the reinstatement
of the
educator in the educator's former post or in any other post on such
conditions relating to the period of the educator's
absence from duty
or otherwise as the employer may determine.
[18] The
termination of applicant’s employment relationship thus was a
deemed dismissal on account of misconduct. An apparent
anomaly
arises as a result of the provisions of Section 18(2) of the Act.
This section provides that, where an educator commits
an act of
misconduct, the employer must institute disciplinary proceedings in
accordance with the disciplinary code and procedures
contained in
Schedule 2. Clearly although Section 14(1) deems an employee to be
dismissed on account of misconduct, no express
provision is made in
this section for the application of the LRA nor for the Disciplinary
Code and Procedures of Schedule 2 of
the
Employment of Educators Act.
[19] The
question therefore arises as to the status of the deemed dismissal in
terms of
section 14(1)
and its relationship to a dismissal on the
grounds of misconduct as set out in
section 18
(2). The legal
meaning of the word ‘deemed’ is to found in
Chotabai
v Union Government
1911 AD 33
where Rose Innes JA said as follows:
“
The
use of the word
deemed
was
perhaps not a very happy one, because that term may be employed to
denote merely that persons or things to which it relates
are to be
considered to be what really they are not, without in any way
curtailing the operation of the statute in respect of other
persons
or things falling within the ordinary meaning of the language used…
The decision in
R
v Norfolk Country Council
63 LT 222
,
may
be usefully referred to, and the remarks of Justice Cave are very
apposite. So that the word
deemed
must be
here taken in its general sense as meaning ‘considered’
or ‘regarded’; and the Legislature, when
it directed that
certain classes of Asiatics shall be
deemed
lawfully resident for the purposes of the statute, intended to
exhaust the list of those who were to be included in that
expression.”
[20] Viewed
accordingly, a discharge in terms of
section 14(1)
, being a deemed
dismissal on account of misconduct, should be treated in similar
fashion to a dismissal on a count of misconduct
as in
section 18(2).
Thus, those provisions of the Act that govern dismissal due to
misconduct ought to apply in similar fashion. Schedule 2 of
the Act
lists as among its purposes in section 1 (a) ‘to support
constructive labour relations in education’ (section
1(g)) and
‘to prevent arbitrary or discriminatory actions by an employers
towards educators (section 1(e)). Section 3
of Schedule 2 headed
‘code of good practice’ specifically incorporates section
8 of the LRA by reference insofar as
it relates to discipline.
[21] In
our view, therefore the employer’s conduct in exercising his or
her discretion in a manner which failed to prevent
a sanction of
dismissal as provided by section 14 (1) ought to be subjected to the
same scrutiny as conduct in terms of section
18(3) (i). Such
conduct is therefore capable of being tested against the Code of Good
Practice contained in section 8 of the
LRA.
[22]
The conduct of the employer which gave rise to the impugned conduct
commenced after the Bhoopchand award. An enquiry into
the refusal
of the employer to reinstate the applicant in accordance with the
provisions of section 14 (2) manifestly necessitates
an enquiry into
the conduct of the parties after that award had been delivered.
[23] To
return to the approach adopted by Ngcobo J in
Chirwa,
being the majority judgment, the question arises as to the powers
invoked pursuant to an investigation into the dispute. As
has been
analysed, the power concerns the termination of a contract of
employment. The source of the power therefore is the employment

contract between the applicant and respondents. The nature of the
power involved concerns the employment relationship. The
mere fact
that the employer was an organ of State which exercises public powers
does not, on this approach, convert the impugned
conduct into
administrative action.
[24] It
is a matter which falls broadly under section 23 of the Constitution
rather than section 33 which is concerned with acts
of administration
performed by an organ of state. The following passage of Ngcobo J’s
judgment is expressed in clear terms:
“
Consistently
with this objection, the LRA brings all employees, whether employed
in the public sector or private sector under it,
except those
specifically excluded. The powers given to the Labour Court under
section 158(1) (h) to review the executive or
administrative acts of
the State as an employer give effect to the intention to bring public
sector employees under one comprehensive
framework of law governing
all employees. So, too, is the repeal of the legislation such as
Public Service Labour Relations Act
and the Education Labour
Relations Act. One of the manifest objects of the LRA is,
therefore, to subject all employees, whether
in the public sector or
in the private sector, to its provisions except those who are
specifically excluded from its operation.”
(at
para 102)
[25] The
majority in
Chirwa
requires an examination of the substance of the dispute; in this case
it is a dispute based upon an employment relationship and
its
termination. Our finding can be elucidated, to an extent, by
reference to the minority judgment in
Chirwa
of
Langa CJ. The learned Chief Justice says:
“
The
implication is that there is no constitutional reason to prefer
adjudication of a claim that may simultaneously constitute both
a
dismissal and administrative action, under the LRA rather than under
PAJA. I should add that the Legislature could resolve
any potential
problems of duplication by conferring sole jurisdiction to deal with
any disputes concerning administrative action
under PAJA arising out
of employment upon the Labour Court. So far the Legislature has not
chosen this route.”
(at para 175)
[26] Whereas
the Chief Justice considers that rights overlap between the LRA and
PAJA and hence both pieces of legislation should
apply, the approach
we have adopted, and which is congruent with the majority judgment of
Chirwa,
is that the right to which resort should be made in the present case
should be based upon the following considerations:
(1) examine
the substantive nature of the dispute;
(2) if
it is a dispute that falls under the LRA, then
(3)
rely upon the more specific right; in this case the right to fair
labour practices as opposed to the more general right of
fair
administrative action.
[27] For
this reason therefore, the applicant has chosen to launch his
application in the incorrect forum by relying on PAJA rather
than
upon the
Employment of Educators Act read
together with the LRA.
Consequently, the Labour Court has exclusive jurisdiction to
determine the outcome of this application.
In the light of this
conclusion, there is no need for this court to canvas any of the
various arguments which were raised concerning
the substantive merits
of the application. For these reasons, the application is
dismissed with costs.
_______________
DAVIS
J
_________________
ALLIE J