Sodo and Others v Government of the Eastern Cape and Another (NHE28/2/1) [1999] ZALAC 43 (1 September 1999)

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[1999] ZALAC 43
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Sodo and Others v Government of the Eastern Cape and Another (NHE28/2/1) [1999] ZALAC 43 (1 September 1999)

7
IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
PORT ELIZABETH CASE NO NHE 28/2/1
In the
matter between
RICHARD
SODO AND 26 OTHERS
APPLICANTS
and
THE
GOVERNMENT OF THE EASTERN CAPE
FIRST RESPONDENT
THE
DIRECTOR-GENERAL, EASTERN CAPE
PROVINCE
SECOND
RESPONDENT
JUDGEMENT
NICHOLSON
JA
[1] The applicants were employed by the first respondent until their
employment was terminated pursuant to rationalisation of the
public
service on 31 January 1996. They allege that such termination was
unfair. They seek relief, reinstatement, compensation
and costs. The
application is opposed by the respondents who dispute that the
termination was unlawful or unfair.
[2] According to a directive of the acting judge president of this
court dated 10 August 1999, the matter was set down for hearing
in
respect of the ‘… issue whether this dispute relates to a matter
which the Labour Appeal Court has jurisdiction to deal
with as well
as on the issue whether the Labour Appeal Court that should hear
this matter is one constituted before a judge with
two assessors or
one constituted before three judges.’
[3] The applicants seek the relief I have set out above by virtue
of the provisions of the Labour Court sitting as Special Tribunal
Act 30 of 1995 (
>
the
Act
=
). The
Act was passed pursuant to section 237(4) of the Constitution of the
Republic of South Africa Act, No 200 of 1993 (
>
the
Interim Constitution
=
),
which (in ss 236 and 237) dealt with the rationalisation of the
public service. The sub sections provided that –
4(a) The labour appeal court established by section 17A of the
Labour Relations Act, 1956 (Act 28 of 1956), sitting as a special
tribunal in terms of an Act to be passed by Parliament, shall be
competent to determine any claim or dispute of right in terms
of a
law regulating as at 1 November 1993 employment in an institution
referred to in section 236(1) and arising out of the implementation
of this section and section 236.
[4] Sub-section (4)(e) of section 237, as amended, provided that the
Act and the sub-section itself would lapse two years after
the
commencement of the Interim Constitution
>
save
that any matter properly before the court ... [before 27 April 1996]
shall be heard and determined as if this subsection and
the said Act
had not lapsed.
=
[5] The applicants’ notice of application was dated 22 February
1996 and was served on respondents on 11 March 1996. There have
been
subsequent delays which have had the effect that to date the matter
has not been disposed of. Section 5(3) provides for a
speedy
hearing, which must take place within 60 days after receipt of the
application. There is provision for condonation and an
extension of
the time limits I have mentioned in section 5(4). The difficulty
which the applicants say they have encountered is
that the Labour
Relations Act 1956 was repealed by the Labour Relations Act 66 of
1995 (‘the LRA’) and that it is, or no longer
may be, possible
to constitute an appeal court under the 1956 Act.
[6] This Court was created by the new LRA and has exclusive
jurisdiction in terms of section 173(a) to hear and determine all
appeals against the final judgments and the final orders of the
Labour Court; and in terms of section 173(1)(b) it has the power
to
decide any question of law reserved in terms of section 158(4). The
relief sought in this application is clearly not an appeal
from the
Labour Court nor has that Court reserved for the decision of this
Court any question of law that arose in those proceedings
as
provided in the latter sub-section.
[7] Section 173(2) provides that if, in any proceedings before the
Labour Appeal Court, circumstances arise such as those contemplated
in section 102(1), 102 (2) or section 102(8) of the Interim
Constitution, the Labour Appeal Court must act in the manner
provided
for in that section. These sub-sections of the Interim
Constitution deal with certain procedural matters which arise if
there is
an issue which may be decisive for the case, and which
falls within the exclusive jurisdiction of the Constitutional Court.
In
such circumstances this court is required to refer such matter to
the Constitutional Court for its decision. Any issue other than
an
issue referred to the Constitutional Court is suspended pending the
decision of the Constitutional Court. Section 102(8) provides
that
if this Court disposes of a matter in which a constitutional issue
has been raised and such court is of the opinion that the
constitutional issue is of such public importance that a ruling
should be given thereon, it may, notwithstanding the fact that
the
matter has been disposed of, refer such issue to the Constitutional
Court for a decision. It is abundantly clear that these
provisions
are also not applicable.
[8] In terms of section 175 this Court may sit as a court of first
instance when the Judge President so directs. The Judge President
did not direct this court to hear this matter under section 175.
[9] This court is, in terms of section 167(3) a superior court that
has authority, inherent powers and standing, in relation to
matters
under its jurisdiction, equal to that which the Appellate Division
of the Supreme Court has in relation to matters under
its
jurisdiction. I do not believe that the present enquiry may be
dealt with under its inherent jurisdiction.
[10] From the above it is clear in my view that this Court has no
jurisdiction to consider the question put to it. It is therefore
not
necessary to consider the second question posed above.
[11] We were invited by counsel to make a finding as to which forum
should decide this matter and to determine whether the matter
was
>
properly
before [such] court ... [before 27 April 1996]
=
.
The court does not give advice nor should it decide a matter
falling outside its sphere of competence. Any pronouncement on the
matters referred to by counsel would be of less value even than an
obiter dictum
it would be of no assistance to the parties.
[12] Mr Pillay, who appeared for the respondents, together with Mr
Bloem, did not seek costs in this matter.
[13] The following order is made
It
is declared that this Court does not have jurisdiction to hear this
application;
the
application is struck off the roll;
there
is no order as to costs.
_________________________
Nicholson JA
I agree
__________________________
Conradie JA
I agree
___________________________
Mogoeng AJA
Date of hearing 21 September 1999
Date of judgement September 1999
Appearance for applicants Adv G Goosen
Appearance for respondent Adv Pillay SC and Adv G Bloem