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[2017] ZALAC 11
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Minister of Labour and Another v Public Services Association of South Africa and Others (JA103/2015) [2017] ZALAC 11; (2017) 38 ILJ 1075 (LAC) (25 January 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JA103/2015
In the
matter between:
MINISTER
OF LABOUR
First
Appellant
NTLEKI,
MALIXOLE
Second
Appellant
and
PUBLIC
SERVICES ASSOCIATION
OF
SOUTH
AFRICA
First
Respondent
CROUSE,
JOHANNES THEODORUS
Second Respondent
Coram:
Waglay JP, Ndlovu
et
Coppin JJA
Heard:
20 September 2016
Delivered:
25 January 2017
Summary:--
Minister’s
reversal of designation of official as registrar of labour relations
appointed in terms of S108(1) of the Labour
Relations Act,no.66 of
1996 administrative action and reviewable in terms of the
Promotion
Of Administrative Justice Act, no.2 of 2000
, Alternatively, the
principle of legality in the constitution—not established that
registrar had duty to brief minister concerning
specific matter
registrar was dealing with in exercise of functions—Registrar
nevertheless found to have adequately briefed
minister----Reversal of
designation In circumstances confirmed to have been irrational and
invalid—Decision also confirmed
to have been procedurally
unfair—Reinstatement to position of registrar appropriate
remedy---Appeal of Minister against judgment
and order of labour
court dismissed with costs
.
JUDGMENT
COPPIN JA
[1] This
is an appeal against the judgment of the Labour Court (Myburgh AJ) in
terms of which the first appellant’s revocation
of the second
respondent’s designation as Registrar of Labour Relations was
set aside and an order was made directing the
first appellant (“
the
Minister
”) to reinstate the second respondent (“
Mr
Crouse
”) as Registrar of Labour Relations (“
Registrar
”)
with immediate effect and directing the Minister to pay the legal
costs of the application for such relief (excluding the
costs of a
particular day). The second appellant (“
Mr Ntleki
”)
was appointed by the Minister as “Acting Registrar of Labour
Relations” after Mr Crouse was removed from that
position.
[2]
The following facts are common cause or not particularly disputed.
Some years ago, the Minister designated Mr Crouse, who was
at the
time employed as a Deputy Director in the National Department of
Labour, as Registrar in accordance with section 108(1)
of the Labour
Relations Act
[1]
(“
the
LRA
”).
[3]
Section 108(1) of the LRA provides:
‘
The
Minister must designate an officer of the Department of Labour as the
registrar of labour relations to perform the functions
conferred on
the registrar by or in terms of this Act.’
[2]
[4] Mr
Crouse, in his capacity as Registrar, launched an urgent application
in the Labour Court on 12 April 2015 in terms of which
he sought to
place a trade union - the Chemical, Energy, Paper, Printing, Wood and
Allied Workers’ Union (“
CEPPWAWU
”) - under
administration in terms of section 103A of the LRA, alternatively to
wind-up the trade union as envisaged in section
103 of the LRA.
[5] At
the time CEPPWAWU had a membership of about 66 000 as well as
substantial assets, inclusive of funds exceeding R4 billion.
[6] The
application was, according to Mr Crouse, necessitated by the
following: (i) CEPPWAWU’s failure to prepare and submit
audited
financial statements to the Registrar for a period of about five
years; (ii) CEPPWAWU’s failure to hold meetings
in compliance
with the provisions of its constitution; (iii) CEPPWAWU’s
failure to keep records of its income, expenditure,
assets and
liabilities since 2010; (iv) the internal conflict and strife amongst
CEPPWAWU’s elected office-bearers; (v) the
concerns raised by
some of its members concerning CEPPWAWU’s management of funds
in excess of R4 billion; and (vi) the failure
(caused in turn by the
strife between its office-bearers) of CEPPWAWU to keep to a plan so
as to ensure that it complied with the
LRA and became viable.
[7] It is
further common cause that the Minister sought a briefing from Mr
Crouse concerning the CEPPWAWU matter, in particular
the section 103A
application which Mr Crouse had brought. There was a dispute about
whether Mr Crouse briefed the Minister as the
Minister requested. Mr
Crouse contends that he did. The Minister maintained that he did not.
[8] Of
significance though, is the fact that the Minister, by letter dated 5
June 2015, informed Mr Crouse that she was deeply concerned
that Mr
Crouse, as the Minister’s designated official in terms of
section 108 of the LRA, did not brief her on the CEPPWAWU
matter
before invoking section 103A of the LRA. The Minister goes on to
state in the letter:
‘
Accordingly,
I call on you to suspend the Labour Court application in question
until such time that you have briefed me fully on
this matter. My PA
will liaise with you on the suitable date when you can brief me in
this regard.’
[9] Mr
Crouse avers that he sent an e-mail to the Minister’s office on
9 June 2015, indicating his willingness to meet with
the Minister and
that he would be awaiting a date for their meeting, but he received
no response to his message from the Minister’s
office.
Notwithstanding, it is common cause that Mr Crouse did not suspend
the section 103A application and that, together with
the Deputy
Director-General (“
the DDG
”) of the Department, he
made a ministerial submission,
inter alia
, furnishing reasons
for not doing so.
[10] The
section 103A application brought by Mr Crouse was to be heard in the
Labour Court on 18 June 2015. On the day before that
date, CEPPWAWU
brought an application to postpone the hearing of the application. At
the time CEPPAWAWU had not filed answering
papers in respect of the
application. On 18 June, the Labour Court postponed the application
subject to time limits for the filing
of subsequent sets of
affidavits and heads of argument. The latter were to be filed by 30
July 2015.
[11] It
is common cause that the Director-General (“
the
DG
”)
of the Department sent a letter dated 10 July 2015 to the DDG (who
was supportive of Mr Crouse’s actions) and to
Mr Crouse, in his
capacity as Registrar, regarding the section 103A application, in
which the DG,
inter alia,
contends that Mr Crouse has failed
to comply with and ignored the Minister’s instruction to
suspend the application and to
brief the Minister as instructed by
her. The DG registers his concern about how Mr Crouse had dealt with
the matter and then goes
on to “
instruct
” the DDG
and Mr Crouse to suspend the application immediately and to inform
the DG’s office accordingly; further to
avail themselves to
fully brief the Minister on the matter on a date which the Minister’s
PA would notify them of, and to
give a detailed report why the
Minister’s instructions were not complied with.
[12] The
DG also informed the DDG and Mr Crouse that any legal costs incurred
in connection with the section 103A application would
be regarded as
“
irregular expenditure
” and will be recovered
“
from all officials of the Department of Labour involved in
the matter
”, and, further, that the Department of Labour
would not be responsible for any costs and will not be paying any
legal or
other costs relating to the section 103A application. The DG
further instructed the Chief Financial Officer not to pay any legal
or other costs pertaining to the application, pending further
instructions.
[13] It
is not in issue that Mr Crouse responded in a letter to the DG and in
a ministerial submission in which he gave his version
of his
engagement with the Minister concerning the CEPPAWWU matter; as well
as his reasons for bringing the section 103A application.
Mr Crouse
also explained the reasons why the application was not suspended as
instructed by the Minister. He
inter alia
mentioned that the
instruction was ambiguous and presented practical difficulties. In
addition to mentioning that the Minister’s
office did not
respond to his e-mail in which he indicated a willingness to meet
with the Minister, he states that the section
103A application was
necessary and that a delay in finalising that application would be
“
to the detriment of the workers and could encourage ongoing
mismanagement of the union by its officials
”. Concerning
the instruction that he suspends the application, he stated that he
was
functus officio
and could not reverse the decision to
bring the application and that any person aggrieved by his decision
could appeal it in terms
of section 111 of the LRA. Mr Crouse took
issue with the request for a briefing and with the DG’s
instructions regarding
the costs pertaining to the CEPPWAWU matter.
[14] The
DDG co-signed the ministerial submission with Mr Crouse. In the
submission, issue is taken with the implication by the
Minister and
the DG that the Registrar had to obtain the Minister’s prior
approval before executing the duties imposed on
the Registrar in
terms of the LRA. Mr Crouse also disavowed any knowledge of a formal
request to avail himself for a meeting with
the Minister, but
indicated that he was willing to make himself available for such a
meeting. This submission also
inter alia
deals with the
request that the application be suspended and the reasons why the
request could not be complied with. The reasons
given are the very
same reasons Mr Crouse gave in his response to the DG.
[15] The
DG, or an official from his Department, had also sent a letter to the
State Attorney requesting a suspension or withdrawal
of the section
103A application. The State Attorney had responded to the request
indicating the difficulty in executing such request.
The State
Attorney confirmed having informed the official that Mr Crouse had
expressed an intention to continue with the application
even if he
had to do so personally. The State Attorney had also suggested that
due to the conflicting instructions, one option
was for the State
Attorney to withdraw as attorney of record. On 20 July 2015, an
official of the Department of Labour instructed
the State Attorney to
withdraw as attorneys of record. The State Attorney complied the next
day. The Registrar (Mr Crouse), consequently
bereft of legal
representation, nevertheless, pursued the section 103A application on
his own.
[16] The
next development in the saga was the catalyst for these issues coming
before the Labour Court. On 23 July 2015, the Minister
in a letter to
Mr Crouse revoked his designation as Registrar. The relevant portion
of the Minister’s letter reads:
‘
Kindly
be advised that your designation as the Registrar of Labour Relations
in terms of section 108 of the LRA is hereby in terms
of section 208A
of the Act revoked with immediate effect on the grounds of gross
insubordination. Please note that you will
be assigned new
responsibilities by the [DDG] in liaison with the Head of
Department.’
[17] The
Minister then went on to designate Mr Ntleki as the Acting Registrar
of Labour Relations in the place of Mr Crouse.
[18]
Having unsuccessfully demanded his reinstatement to the position of
Registrar, Mr Crouse brought the application which is the
subject of
this appeal, on an urgent basis in the Labour Court. His application
is founded on section 158(1)(a)(iii) read with
section 158(1)(h) of
the LRA, alternatively, on the latter section. In terms of section
158(1)(a)(iii), the Labour Court is empowered
to make any appropriate
order, including “
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
”. In terms
of section 158(1)(h) the Labour Court is empowered to “
review
any decision taken or any act performed by the State in its capacity
as employer on such grounds as are permissible in law”.
[19] Mr
Crouse contended that even though the Minister’s power in terms
of section 108, to designate an officer of the Department
of Labour
as the Registrar of Labour Relations, also implied the power to
revoke such designation, the Minister’s latter
power was
constrained by the constitutional principle of legality. A decision
to revoke, in order to be valid and effective, had
to be based on
rational grounds, failing which, it fell to be reviewed and set
aside.
[20] Mr
Crouse averred that the Minister’s demand, in effect, that he
performs his statutory functions in consultation with
her, amounted
to “
unlawful interference and/or usurpation
” of
his powers. He further contended that before revoking his
designation, the Minister failed to give him a hearing and
that her
decision was irrational. He submitted that the Minister failed to
take into account that once he had made the decision
to proceed
against CEPPWAWU for deregistration, alternatively for an order
placing it under administration, he (i.e. in his capacity
as
Registrar) was
functus officio
and that the only remedy an
aggrieved party, with an interest in the matter, had, was to appeal
to the Labour Court in terms of
section 111 of the LRA.
[21]
Mr Crouse submitted that the Minister’s decision was based on a
misinterpretation and/or a misapplication of the LRA.
He further
averred that the impugned decision of the Minister was reviewable
under the Promotion of Administrative Justice Act
[3]
(“
PAJA
”)
because it was unlawful and constituted an unlawful interference with
the statutory functions of the Registrar. Mr Crouse
submitted that
the independence of the Registrar’s office was being interfered
with. The relief he sought was to be reinstated
in his position as
Registrar.
[22] The
Minister opposed the application in the Labour Court and deposed to
an answering affidavit in which she raised a jurisdictional
point –
arguing, essentially, that the remedy of reinstatement was provided
by the LRA and that Mr Crouse had to follow the
procedures laid down
in the LRA. According to the Minister, unless a finding of an unfair
dismissal or of an unfair labour practice
was made, the remedy of
reinstatement was not available. Elaborating on this point, the
Minister averred that “
conciliation by the relevant forum is
a prerequisite to clothe
” the Labour Court with
jurisdiction and since there has been no conciliation, the Labour
Court lacked jurisdiction. The Minister
also challenged the urgency
and in effect averred that the order sought by Mr Crouse was moot and
had been overtaken by events,
as the Minister had already designated
Mr Ntleki as Acting Registrar.
[23] In
respect of the merits, the Minister denied the averments of Mr Crouse
and gave her version. The Minister disputed Mr Crouse’s
entitlement to rely on PAJA, firstly, because, according to the
Minister, it was the personal interest of (Mr Crouse), as an employee
of the Department, that is at stake and, secondly, that Mr Crouse had
not complied with the provisions of PAJA, in that he had
failed to
exhaust the internal remedies and has not sought exemption from doing
so.
[24] The
Minister further denied that she had intended to “
frustrate
further prosecution of the CEPPWAWU matter
”. She averred
that it was a matter of national importance and that it required
“
careful handling and proper communication within the
Department which
[Mr Crouse]
was not prepared to do
”.
[25] The
Minister also averred that as cabinet member responsible for the
labour relations portfolio she had “
a duty to maintain and
enhance good labour relations between employers and the labour forces
within the country
”; that she “
simply
”
required a proper briefing from Mr Crouse, which he refused to give;
and that the revocation of Mr Crouse’s designation
as Registrar
was precipitated by Mr Crouse’s conduct which amounted to
“
gross insubordination
”.
[26] In
respect of the instruction regarding the payment of legal costs for
the CEPPWAWU matter, the Minister averred that the DG,
as an
accounting officer of the Department, was within his rights to warn
Mr Crouse of such costs in order to prevent irregular
or wasteful
expenditure. The Minister further contended that even though Mr
Crouse was the Registrar, he was still an employee
of the Department
and was accountable to the Department; and that Mr Crouse “
could
not, as Registrar operate in total disregard
” of her office
or that of the DG. The Minister further averred that even though Mr
Crouse’s designation as Registrar
had been revoked, it was
still the intention of the Department to charge him with “
gross
insubordination
”, but the matter was still under
investigation. I shall, in due course, deal with the other aspects
raised in the affidavits
insofar as they might be necessary or
relevant for the decision of this appeal.
[27]
The court
a
quo
dismissed
all the preliminary points taken by the Minister. In respect of the
first, on jurisdiction, it ruled that Mr Crouse’s
claim was
based on “
administrative
law and the principle of legality
”
and that the Labour Court had jurisdiction to entertain it in terms
of section 158(1)(h) of the LRA. In respect of the second,
the court
a
quo
held that even though Mr Crouse sought to be reinstated in his
position as Registrar it was not reinstatement in terms of section
193(1) of the LRA that was being sought, but reinstatement “
as
an adjunct to an order setting aside the impugned decision
”.
[28]
In respect of the third point, namely, that the Minister’s
revocation of Mr Crouse’s designation as Registrar,
did not
constitute administrative action, as envisaged in PAJA, the court
a
quo
held that it did indeed constitute administrative action and that
PAJA was applicable.
[4]
[29] In
respect of the fourth preliminary point, relating to the exhaustion
of internal remedies if PAJA was applicable, the court
a quo
held that no internal remedy provided for in law had been adequately
identified which Mr Crouse was required to have exhausted.
According
to the court
a quo,
vague references to possible remedies were
insufficient to sustain the Minister’s argument.
[30] The
court
a quo
further held that if the Minister’s impugned
decision was not “
administrative action
” as
contemplated in PAJA and if PAJA did not apply the decision was still
reviewable on the basis of the constitutional principle
of legality;
Further, that the principle had various aspects (or requirements) one
of which was rationality. Against that background
the court
a quo
dealt with the merits of the application and with each of the grounds
relied upon by Mr Crouse. The court
a quo,
ultimately, only
upheld one ground of review.
[31] The
one ground of review upheld by the court
a quo
is summarised
as follows:
‘
In
summary, I have found that:
(i)
The
impugned decision constitutes administrative action and that a PAJA
review is thus available to Mr Crouse; alternatively, the
impugned
decision constitutes the exercise of a public power and is subject to
legality review;
(ii)
In
arriving at the impugned decision, the Minister ignored materially
relevant facts, namely the ministerial submission of 15/16
July 2015;
(iii)
The
consequence of this is that the impugned decision was unreasonable,
alternatively irrational; and procedurally unfair; and
(iv)
The
impugned decision thus falls to be set aside on review and Mr Crouse
reinstated into the position of Registrar of Labour Relations.’
[32] The
court
a quo
then went on to make an order setting aside the
Minister’s decision revoking Mr Crouse’s designation as
Registrar of
Labour Relations; directing the Minister to immediately
reinstate Mr Crouse as Registrar of Labour Relations; and ordering
the
Minister to pay the costs of the application (including the costs
of 7 August 2015).
[33] On
application the court
a quo
granted the appellants leave to
appeal to this Court. Several grounds are relied upon which will be
dealt with in turn. The appeal
raises the following issues
inter
alia
: Is PAJA applicable? And, more particularly, is the impugned
decision “
administrative action
” as contemplated
in PAJA, and as part of that issue the main prominent questions are
firstly, whether the impugned decision,
inter alia
, had “
a
direct, external legal effect
”, as contemplated in the
definition of “
administrative action
” in section 1
of PAJA and whether the impugned decision was the product of the
exercise of “
executive powers or functions
” as
contemplated in paragraph (aa) of the definition. Other issues are
whether the conduct of the Minister was in breach
of PAJA and if the
Minister’s impugned decision was reviewable in terms of the
principle of legality, whether it was in breach
of that principle.
[34] I
now deal with the grounds of appeal. The first ground of appeal
briefly was that the court
a quo
erred in finding that the
impugned decision was an “
administrative action
”
as contemplated in PAJA and that PAJA was applicable. The submissions
briefly in support of that point were that the Minister
had taken the
impugned decision in terms of section 108 of the LRA, which is
national legislation, and that by virtue of
section 85(2)(e) of
the Constitution of the RSA (1996) the Minister was performing “
an
executive function provided for in national legislation
”
(i.e. the LRA); that section 1 of PAJA expressly excludes executive
powers or functions from the definition of “
administrative
action
”; that, in any event, the impugned decision could
not have had “
a direct and external effect on
” Mr
Crouse’s appointment. Mr Ntleki had been appointed to act
as Registrar. Further, it was alleged that Mr Crouse
had no legal
basis to complain that in his absence the official duties of the
Registrar were not discharged properly.
[35]
In argument before us counsel for the appellants elaborated on this
ground and added new arguments, namely, that if PAJA was
applicable
then Mr Crouse was obliged to first exhaust internal remedies.
Counsel emphasised that the impugned decision had no
“
direct,
external legal effect
”
as required by the definition of “
administrative
action
”
in section 1 of PAJA. He further submitted that section 108 of the
LRA only involves a conferment of the title of Registrar
of Labour
Relations in respect of an existing employee of the Department of
Labour and did not result in the conferment upon such
employee of
“
any
additional benefits and advantages from what he or she had sans such
designation
”.
Further, that the revocation of the designation, similarly, did not
result in such an individual losing any benefits or
advantages.
Counsel added to this that such an employee is not prejudiced by the
revocation. Reference in that regard was made
to a passage in the
judgment in
Liquor
Web (Edms) Bpk v Voorsitter, Drankraad en Andere
[5]
to the effect that the rationale for the judicial review of decisions
of bodies such as the Liquor Board was to prevent prejudice
to
individuals and that in the absence of such prejudice the review
could not succeed.
[36]
The court
a
quo
referred to what was held in
Gcaba
v Minister for Safety and Security and Others
(“
Gcaba
”)
[6]
in respect of the question whether the decision (in that case not to
promote the litigant) constituted administrative action, namely,
that:
‘
Generally,
employment and labour relationships do not give rise to
administrative action as contemplated by the PAJA. Section 23
of the
Constitution regulates the relationship between employer and employee
but section 33 does not. A grievance raised by employees
relating to
the conduct of the state as employer has few if any direct
implications or consequences for other citizens. Employment
disputes are therefore not to be equated with matters such as
tenders
.’
[7]
[37]
The court
a
quo
then referred to the decision of the Labour Court in
De
Villiers v Head of Department: Education; Western Cape Province
[8]
(
De
Villiers
)to the effect that the general rule that employment-related
grievances by state employees may in certain instances have
implications
or consequences for other citizens (as held,
inter
alia,
in
Gcaba
)
and that an assessment had to be conducted on a case-by-case basis to
determine whether a departure from the rule was warranted.
Further,
that, following decision of the Constitutional Court in
President
of the Republic of South Africa and Others v South African Football
Union and Others
(“
SARFU
”),
[9]
the relevant factors to be taken into account in making the
assessment were “
the
source and nature of the power being exercised; how closely the power
is related to the implementation of the legislation (as
opposed to a
policy matter)
”
and “
the
subject matter of the power
”.
Another factor which the court
a
quo
suggested was to be taken into consideration was “
the
existence of any alternative remedies
”
which the Labour Court held, was a factor that “
weighed
”
with the Constitutional Court in both
Chirwa
v Transnet Limited and Others
[10]
(Chirwa)
and
Gcaba
.
[38]
The court
a
quo
found further support for this exception to the general rule in the
minority (dissenting) view of Langa CJ in
Chirwa
[11]
where the Chief Justice stated
inter
alia
that his reasoning did not suggest that “
the
dismissal of public employees will never constitute ‘administrative
action’ under PAJA”
and
gave examples where, according to his view, such dismissals may
fulfil the requirements of the definition of ‘administrative
action’ in PAJA.
One
instance being where the person is dismissed in terms of a particular
legislative provision and another being where the dismissal
is likely
to “
impact
seriously and directly on the public by virtue of the manner in which
it was carried out
”
or “
by
virtue of the class of public employee dismissed
”.
The court
a
quo
also cited, in support of its view that the general rule stated in
Gcaba
had exceptions, a reference in Hoexter
[12]
where the dismissal of the Chief Executive Officer of the Commission
of Gender Equality was regarded as administrative action.
The court
a
quo
further referred to the decision of the Labour Court in
De
Villiers
,
where the decision refusing to reinstate an employee deemed to be
dismissed in section 14(2) of the Employment Educators Act
[13]
,
was held to constitute “
administrative
action
”.
The key consideration for that conclusion was that the power to
refuse reinstatement was not sourced from contract but
from the
applicable statute and that the employee had no alternative remedy. A
further reference was the decision in
Hendricks
v Overstrand Municipality and Another
[14]
(“
Hendricks
”)
where it was held that the decision of a presiding officer not to
dismiss a senior municipal police official on corruption
charges was
“administrative action” within the meaning of PAJA.
[39]
Drawing on those authorities, the court
a quo
concluded, with
reference to the facts of this case, that this was one of those
exceptional instances where an employment-related
decision in the
public sector did amount to “administrative action”. The
reasons for this conclusion, briefly, were
the following:
[40]
Firstly, the Minister’s power to revoke the designation of Mr
Crouse as Registrar was derived, or sourced, from statute,
i.e.
section 108 of the LRA, and not from a contract.
[15]
[41]
Secondly, Mr Crouse had no alternative remedy under the LRA.
According to the court
a quo,
the revocation of his
designation as Registrar did not affect his conditions of employment.
He would have had no claim to having
been demoted, because his
position was similar to that of a senior executive whose secondment
is recalled but whose terms and conditions
remain unaffected and,
further, that Mr Crouse did not have any claim based on unfair
disciplinary action short of a dismissal,
since the Minister did not
take disciplinary action against Mr Crouse and the purported
misconduct was still being
investigated.
[42]
Thirdly, according to the court
a quo
, “
in the
context of labour relations in general, the impact of the removal of
the Registrar is of huge public import
”. There is no merit
in the argument of the Minister that the appointment of Mr Ntleki as
Acting Registrar has nullified or
neutralised any impact of the
impugned decision.
[43]
Fourthly, the court
a
quo
was of the view that it could not be disputed that the impugned
decision “
adversely
affected Mr Crouse’s rights
”.
As for the definitional requirements that the decision must have “
a
direct, external legal effect
”,
the court
a
quo
relied on what was held by the Constitutional Court in,
inter
alia,
Joseph
and Others v City of Johannesburg and Others
[16]
namely
that the finding that the rights of the applicants were materially
and adversely affected for the purposes of section 3 of
PAJA would
necessarily imply that the decision had a “
direct,
external legal effect
”
on the applicants.
Discussion
[44] In
light of the decisions of the Constitutional Court, culminating in
Gcaba,
what has to be determined is, firstly, whether the
impugned decision, even though it inarguably involves an
employee/employer relationship,
is nevertheless not a labour practice
as envisaged in section 23 of the Constitution and the LRA and,
secondly, whether it is “
administrative action
” as
envisaged in section 33 of the Constitution and ultimately in PAJA.
[45]
In respect of determining whether it is “
administrative
action
”,
it is reasonably established since, at least, the Constitutional
Court’s decision in
Minister
of Health v New Clicks SA (Pty) Ltd and Others
(“
New
Clicks
”)
[17]
that the starting point in determining whether any particular action
constitutes “
administrative
action
”
is not to analyse whether the action contains all the elements of the
definition of the term “
administrative
action
”
in section 1 of PAJA – but to determine what constitutes
administrative action for the purposes of section 33 of the
Constitution.
The
definition in terms of PAJA must be construed consistently with
section 33 of the Constitution.
[18]
[46]
The definition in PAJA cannot be used to define the term in the
Constitution. It can merely refine that provision.
[19]
[47]
Having determined that the action in question is administrative
action within the meaning of section 33 of the Constitution,
one then
refers to the exclusions in the definition of the term in PAJA to
ascertain whether PAJA excludes the action from its
scope.
[48]
Ngcobo J (as he then was) states the approach succinctly as
follows:
[20]
‘
The
starting point in determining whether PAJA is applicable to the
exercise of the power confirmed by s 222G is s 33(1) of the
Constitution. The meaning of administrative action must be determined
by reference to s 33 of the Constitution and not PAJA. Once
it is
determined that the exercise of the executive power authorised by s
22G(2)(a)(c) is administrative action within the meaning
of s 33, the
next question to consider is whether PAJA nevertheless excludes it.
The answer to this question must be sought, in
the first place, in
the exclusionary provisions of PAJA. Reference to these provisions of
PAJA is not for the purpose of determining
whether the process
involved here is administrative action, but whether PAJA excludes the
exercise of this specific power from
its ambit. It follows
therefore that the provisions of PAJA cannot be used as an aide to
determining the meaning of administrative
action in the
Constitution. At best they can be used to fortify the inference
that PAJA excludes the exercise of this specific
power from its ambit
…’
[49]
In respect of the first point, the cases illustrate that at times
there is a fine line between administrative action under
section 33,
public and employment relationship issues in the public sector.
[21]
[50] The
general distinguishing feature between the two is that section 23 of
the Constitution deals purely with employment relationships
and
related issues and does not serve to protect persons outside that
context, whereas section 33 of PAJA, principally, provides
protection
against unfair administrative action.
[51]
What was established in
Gcaba
is a general principle that employment relationship issues do not
amount to administrative action within the meaning of PAJA (i.e.
as
construed consistently with section 33 of the Constitution).
[22]
The clear implication being that there could be exceptions to the
principle and that certain employment relationship issues
(i.e.
actions) may amount to “administrative action” within the
meaning of PAJA, properly construed. For example, there
might be
instances where grievances by State or public sector employees have
implications or consequences for other citizens.
[23]
[52]
Features that serve to distinguish the exception from the general
are,
inter
alia,
the source and nature of the action, whether the action involves, or
is closely related to the formulation of policy, or to the
initiation
of legislation and/or whether it has to do with the implementation of
legislation.
[24]
In
De
Villiers
the Labour Court added the existence of alternative remedies as
another factor to be considered, due to the importance attached
to
that aspect in both the
Chirwa
and
the
Gcaba
decisions.
[53]
Turning to the facts of this case: it involves the revocation by the
Minister, a public official, of
an employee’s designation as
Registrar of Labour Relations. In terms of section 108 of the LRA the
Minister has a duty and
is empowered to that end to “
designate
”
(or “
appoint
”) an officer in the Department of
Labour as Registrar of Labour Relations.
[54]
It is common cause and the Minister’s own version that she
revoked the designation on the strength of that very statutory
provision since the power to revoke, although not expressly stated in
that section, is an implied corollary of her power to designate
or
appoint.
[25]
[55] The
designation by the Minister is further undoubtedly an exercise of a
public power and the revocation of the designation
is no less so. The
Minister is required in either instance to exercise the power in the
public interest. The Registrar’s
office is a public office, and
the exercise of the registrar’s functions does not only impact
trade unions, employers’
organisations, their members, and the
like but has implications for the broader public.
[56] The
designation contemplated in section 108 does not involve the
formulation of policy or the initiation of legislation but
is
squarely about the implementation of legislation (i.e. the LRA). The
designation is essential for putting into effect the provisions
that
require a Registrar of Labour Relations and for the performance of
the functions given to the Registrar.
[57] In
light of the above stated facts the revocation (i.e. the impugned
decision) is in my view “
administrative action
”
within the meaning of section 33 of the Constitution.
[58] What
now has to be determined is whether PAJA nevertheless excludes that
action from its ambit? The only exclusion purportedly
raised by the
Minister is that the impugned decision was the exercise of executive
powers or functions as contemplated in section
1(aa) of the
definition of “
administrative action
” in PAJA.
[59]
Section 1(aa) refers to “
the executive powers or functions
of the National Executive, including the powers or functions referred
to in sections 79(1) and
(4); 84(2)(a), (b), (c), (d), (f), (g), (h),
(i) and (k); section 85(2)(b), (c), (d) and (e); section 91(2), (3),
(4) and (5);
section 92(3), section 93, section 97, section 98,
section 99 and section 100 of the Constitution
”.
[60]
The Minister did not refer to any specific powers or functions listed
in section 1(aa) of PAJA. Even though that list is not
exhaustive,
what is noteworthy is that section 85(2)(a) has not been included in
the list and clearly deliberately so. That section
lists the function
or power of “
implementing
national legislation
”.
Such function or power is obviously or quintessentially
administrative action
[26]
and none of the other exclusions apply in the Minister’s case.
[61] On
the approach postulated in
New Clicks
it is not necessary to
determine whether the other definition or elements are met, in
particular whether the action is a “
decision
”, and
whether it “
adversely
affects the rights of any
person
”, and whether it has a “
direct, external
legal effect
”. The reason, in all likelihood, is because,
as Professor Hoexter states:
‘
Some
of the elements of the PAJA definition have no real counterparts in
the jurisprudence that has developed in relation to s 33,
while other
elements are more extreme than their counterparts in their
jurisprudence
.
‘
Direct,
external legal effect’, the most glaring example, is a German
import that fails to resonate with a pre-2000 jurisprudence.
The
insistence on a ‘decision’ is an Australian phenomenon
and not a requirement that was ever laid down generally
either at
common law or as part of s 33. As for ‘adversely affect
the rights of any person’, Nugent JA noted
in the Grey’s
Marine case that a literal construction of the phrase was not
supported by the court’s interpretation
of s 33 so far.’
[62]
What is required is that the definition be construed consistently
with the meaning which has been given to the term “
administrative
action
”
in section 33 of the Constitution.
[27]
[63]
Notwithstanding the approach in
New
Clicks,
the Constitutional Court in
Gcaba
regarded the fact that the grievance by a public sector employee
against the state had “
few
or no direct implications or consequences for other citizens
”,
as a material indicator that the (state) action complained about
there does not constitute “
administrative
action
”.
[28]
[64]
On the assumption that one has to, nevertheless, determine whether
the aforementioned definitional elements have been satisfied,
the
following may be concluded. It was seemingly accepted by the parties,
and in my view correctly so, that the Minister’s
reversal of Mr
Crouse’s designation as Registrar would constitute a decision
and that it was final. In
Joseph
and Another v City of Johannesburg and Others,
[29]
(Joseph)
the
Constitutional Court endorsed the broad definition given by the SCA
in
Grey’s
Marine
to the phrase “
direct,
external legal effect
”,
namely that the phrase “
serves
to emphasise that administrative action impacts directly and
immediately on individuals
”.
The Constitutional Court held there that the finding that the rights
of the applicants were materially and adversely affected
for the
purposes of section 3 of PAJA would necessarily imply that the
decision had a “
direct,
external legal effect
”
on the applicants.
[30]
In
Joseph
the Constitutional Court also accepted that the phrase “
materially
and adversely affects
”
means that the administrative action had a significant and not merely
a trivial effect on the applicants.
[31]
[65] Mr
Crouse’s designation as Registrar, even though he was from the
ranks of officials in the Labour Department, was an
appointment to
that position. The position itself is an important one for the
efficient and proper implementation of the provisions
of the LRA, in
particular those provisions which require the involvement of the
Registrar in the registration and proper functioning
of trade unions
and employer’s organisations.
[66] The
designation is not to be made lightly and without transparency.
Hypothetically, if required, the Minister must be able
to provide
transparent and rational (and justifiable) reasons why a particular
official and no other was designated as Registrar
and, similarly, in
respect of the revocation of such designation, rational (as well as
reasonable) reasons for such action is called
for. In terms of
section 195 of the Constitution all public administration must be
governed by democratic values that are
enshrined in the Constitution,
including the principles listed in that section, which include,
accountability, transparency, fairness
and equity. The opposites of
those values, namely irrationality, inequality, arbitrariness and
illegality are anathema.
[67] The
position of Registrar of Labour Relations is a public position which
impacts on the rights of significant numbers of workers
and the
public. The reversal of the designation is similarly not to be
lightly affected. The Registrar is tasked with important
functions
and determinations and its decisions, where they are required, have
to be final for the sake of certainty. The position
imparts a
particular status to the designated official which the other
officials in the Department of Labour do not have.
[68]
Consequently, reversing the designation as Registrar does not merely
have a trivial effect, but has a significant impact on
the incumbent
and beyond. The argument on behalf of the appellants that the effect
is not significant, because Mr Crouse merely
reverted to his former
position in the Department (i.e., that he held prior to his
designation as Registrar) and that there is
no change in his salary
and other conditions, overlooks and ignores the obvious.
[69] It
follows that the findings, that the impugned decision adversely
affected the rights of Mr Crouse and that it had a direct
external
legal effect, cannot be faulted.
[70]
Similarly, the court
a quo’s
finding that the Minister’s
action in reversing the designation was subject to review in terms of
the constitutional principle
of legality can also not be faulted. In
argument the Minister’s counsel submitted that the Minister’s
decision can
only be reviewed on that basis provided that there were
grounds of reviewing the decision.
[71]
The Minister in designating an official as Registrar, and doing the
reverse, was exercising a public power. That is a power
given to the
Minister as organ of state by national legislation, namely the LRA.
The principle of legality requires the holder
of such public power to
act in good faith and not to misconstrue his or her powers.
[32]
[72]
In
Pharmaceutical
Manufacturers Association of SA: In Re Ex Parte President of the
Republic of South Africa
(“
Pharmaceutical
Manufacturers
”)
[33]
the Constitutional Court held that the principle of legality required
that public power should not be exercised irrationally or
arbitrarily.
[34]
[73]
Before considering the merits of the review I will briefly consider
the question of internal remedies. A PAJA review requires
that all
internal remedies, if any, provided by any other law, be exhausted
first.
[35]
In this particular case, I am not aware of, nor have any of the
parties, either in this Court or in the court
a
quo,
referred to any specific internal remedy that Mr Crouse was to
exhaust before bringing his application in terms of PAJA. In any
event, Mr Crouse first, though unsuccessfully, demanded his
reinstatement by the Minister and then, only thereafter, brought the
court application for review.
[74]
As pointed out earlier, the only ground of review in respect of which
the court
a
quo
found for Mr Crouse was that the Minister failed to take into account
the ministerial submission of Mr Crouse and the DDG of 15
or 16 July
2015 which had been sent to the DG.
[36]
The DG had sent the memorandum back to Mr Crouse with a written note
– presumed to be that of the DG – to the effect
that the
DG only required a response to a question that the Registrar had
ignored the Minister’s request for a briefing before
proceeding
with the CEPPWAWU application. The court
a
quo
found on the papers before it that the Minister in her averments
seemed to imply that she did receive the submission. That finding
was
not put in issue.
[75] The
court
a quo
also found that the Minister’s averment, to
the effect that Mr Crouse did not deal with the issues as required by
the DG
-- in particular, that while Mr Crouse sought to explain why
he decided to bring the court proceedings against CEPPWAWU –
he
failed to explain why the Minister’s letter to him had been
ignored – was wrong and unjustifiable.
[76]
According to the court
a quo
“
the ministerial
submission addresses Mr Crouse’s explanation for not having
suspended the CEPPWAWU application and not having
briefed the
Minister as per her letter of 5 June 2015
.
Reference is made
in this regard to paras 24(b), (c), (d) and (e) and paras 26(a), (b)
and (c) above. The contents present as a
detailed, cogent and sincere
explanation by Mr Crouse
”.
[77] The
court
a quo
found that the Minister had failed to “
apply
her mind to the material content of the ministerial submissions
”
and that, consequently, the Minister’s decision to revoke Mr
Crouse’s designation as Registrar was unreasonable
and
irrational in terms of PAJA and the principle of legality and,
secondly, procedurally unfair in terms of both PAJA and the
principle
of legality.
[78]
The court
a
quo
did not deal with the complaint raised by Mr Crouse that the Minister
sought to interfere with his statutory functions on a technical
basis, having concluded that in respect of that issue there was a
dispute of fact on the papers that could not be resolved - applying
the well-known rule of
Plascon-Evans
.
[37]
That finding of the court
a
quo
is lamentable. The result of it is that the court
a
quo
apparently did not deal with the Registrar’s position in
relation to the Minister – beyond the fact that the Registrar
was to be appointed and could be removed by the Minister. The court
a
quo
did not deal at all with the legality of the Minister’s actions
in not only requiring an account from the Registrar about
the
exercise of his functions (generally), and specifically, concerning
the case of CEPPWAWU, but the Minister’s and the
DG’s
instructions to the Registrar concerning his decisions and functions
as Registrar.
[79] In
my view the issue was not irresoluble on the papers as they stood,
because all facts were before the court and it was a
matter of
determining the nature of the Registrar’s position as set out
in the LRA in relation to that of the Minister and
under what
circumstances and to what extent the Registrar had a duty if at all
to account to the Minister concerning the exercise
of his functions
as Registrar and specifically in relation to a particular case or
matter. In the absence of a cross-appeal by
Mr Crouse we need not
determine whether the Minister unlawfully interfered with the
Registrar’s functioning, but it is nevertheless
essential to
analyse their legislatively intended relationship in order to
determine the duty of the Registrar to brief the Minister
about a
particular matter and whether there was a briefing.
[80]
On the face of it, the LRA is silent about those matters. It is only
upon a careful consideration of the relevant provisions
of the LRA
which deal with the functions of the Registrar and the Public Service
Act
[38]
(“PSA”), that more light is shed on the issue of what
their relationship ought to be.
[81]
Section 109 of the LRA gives additional functions to and summarises
the other functions of the Registrar. In terms of section
109(1), the
Registrar must keep registers of the entities specified in paragraphs
(a) to (e) (inclusive) of that section. In terms
of section 109(2),
the Registrar is enjoined to give notice in the Gazette of any entry
or deletion he included in the register.
In terms of section 109(3),
the Registrar has the power to condone late compliance of any time
periods stipulated in Chapter VI
of the LRA – except the period
within which a person may note appeal against the Registrar’s
decision. Section
109(4) provides that the Registrar must
perform all the other functions confirmed on the Registrar in terms
of the LRA.
[82]
There are various other provisions in the LRA that confer specific
functions on the Registrar. Briefly, functions are confirmed
in terms
of section 29 of the LRA in relation to the registration of
bargaining councils; in terms of section 34 in relation to
the
registration of amalgamated bargaining council; in terms of section
39 in relation to the application for the establishment
of statutory
councils; in terms of section 40 in relation to the establishment and
registration of statutory councils; in terms
of section 41 in
relation to the establishment and registration of statutory councils
in the absence of an agreement between the
registered trade unions
and registered employers’ organisations; in terms of section 42
in relation to the registration of
statutory council; in terms of
section 48 in relation to the application to change the status of a
statutory council; in terms
of section 54 in relation to a council’s
duty to submit to the Registrar the information specified in that
section (including
financial statements and auditors’ reports);
in terms of section 57 in relation to the registration of the changed
Constitution
or name of a council; in terms of sections 95 and 96 in
relation to the registration of trade unions and employers’
organisations;
in terms of section 100 relating to the duties of
trade unions and employers’ organisations including their
duties to provide
to the Registrar the information specified in that
section.
[83]
Other functions are contained in section 101 of the LRA, relating to
the changing of the constitution, or name of registered
trade unions,
or of employers’ organisations; in terms of section 102
relating to the registration of amalgamated trade unions
or
employers’ organisations; in terms of section 103 relating to
the winding-up of trade unions and employers’ organisations;
in
terms of section 103A relating to the appointment of an administrator
to a trade union or employers’ organisation; in
terms of
section 106 relating to the cancellation of the registration of trade
unions or employers’ organisations; in terms
of section 107
relating to the registration of federations of trade unions and
employers’ organisations; in terms of section
110 in relation
to the access to information in the Registrar’s office and in
terms of section 111 in relation to appeals
against the Registrar’s
decision.
[84] In
only two of the sections referred to above the Minister is given
power or a function in relation to the same subject matter.
Section
40(4) of the LRA provides in relation to the establishment and
registration of a statutory council that if an agreement
is concluded
between the registered trade union and registered employers’
organisation for the establishment of such a council
– “
the
Minister may advise the Registrar to register the statutory council
in accordance with the agreement
” if the Minister is
satisfied that the specified requirements were met. Subsection (7)
provides that if the Minister “
advises
” the
Registrar in terms of subsection (4) the Registrar “
must
”
register the statutory council.
[85] The
second provision is section 41(8) of the LRA which also deals with
agreements concluded in respect of the establishment
of statutory
councils and provides that “
the Minister must notify the
Registrar of agreements concluded and decisions made in terms of ‘the
section’ and that
‘the Registrar must’ do what is
required in paragraphs (a), (b) and (c) of subsection (8)
”.
[86] What
is clearly absent from all of these sections, referred to above,
which gives the Registrar functions, or imposes duties
upon that
official, is an injunction and duty on the Registrar to report or
account to the Minister in respect of the exercise
of the Registrar’s
functions. Another point of significance is that the Minister is not
empowered to perform the very functions
the Registrar has to perform,
not even if the Registrar is unable to do so. The LRA in section 108
merely empowers the Minister
to appoint Deputy Registrars to assist
the Registrar in the performance of the Registrar’s functions,
or for them to perform
such functions of the Registrar as are
delegated to them (section 108(6)). The delegator can only be the
Registrar who is the repository
of the functions in terms of the LRA
and cannot be the Minister, because the Minister has no power to
perform the functions of
the Registrar.
[87] Of
further importance, the Minister is not given any (specific) power or
function or role in respect of the sections which
were applied by the
Registrar in the matter of CEPPWAWU and which (apparently) caused the
Minister to call the Registrar to account.
The relevant sections are
sections 100, 103, 103A and 106 of the LRA.
[88]
Section 7B of the PSA contemplates the necessity to establish
“Specialised service delivery Units” in,
inter
alia
,
national departments. The section,
inter
alia
,
empowers the Minister (the executive authority), in consultation with
the Minister for Public Service and Administration, to establish
such
a unit within a Department and to designate the head thereof. The
section envisages,
inter
alia
,
that such a head would have powers and duties imposed upon, assigned,
delegated or transferred to him or her by legislation. The
Minister,
in terms of that section is required to approve a “protocol”
for such a unit (s7B(4)). The protocol is required
to list a number
of things and, inter alia, and in addition to what it may or must
include, “
shall,
subject to applicable legislation, determine the reporting
requirements to the head of the department, including, but not
limited to, to enabling that head to advise the relevant executive
authority on the oversight of the unit on policy implementation,
performance, integrated planning, budgeting and service delivery
(insofar as applicable).”
[39]
[89]
While the Registrar’s office may not necessarily have been
established in terms of s 7B of the PSA, that section illustrates
that a matter such as reporting by a head of a specialist service
unit, even though the head was designated by the Minister, is
not
something that ought to be dealt with haphazardly or arbitrarily.
Mr
Crouse mentions that in the 20 years, or so, that he has been the
Registrar, he had never been required to give a briefing to
the
Minister (or DG) concerning a matter he was dealing with. He was
clearly not aware that he had a duty to do so. The appellants
have
not referred to any kind of protocol that had been approved in
respect of the Registrar’s functioning, including, of
any
duties of reporting, or briefing.
[90]
The principle of legality enshrined in the Constitution requires,
primarily, that the Minister should not act arbitrarily.
It has not
been proved that the Minister has the power in terms of the law, to
call the Registrar to account to her, or to intervene
in, or assume
the Registrar’s functions.
[40]
If such power had been given to the Minister then the principle of
legality requires that it be exercised rationally, i.e. the
exercise
of the power must be rationally related to the purpose for which the
power was given.
[41]
If not, the exercise of such power is arbitrary and in breach of the
principle of legality.
[91] In
my view, the Minister has not established a legally acceptable basis
for requiring the Registrar to account and for interfering
and
dictating to the Registrar how the Registrar’s discretion
(relevant to this matter), which is very limited, ought to
be
exercised.
[92]
Insofar as the Registrar had a duty to brief the Minister on the
matters the Minister required briefing on – which I
find has
not been established – the Registrar has reasonably and
adequately briefed the Minister in the ministerial submission
of
15/16 July 2015. The Minister apparently did not take into account
the information in the submission and the failure to do so,
in
deciding to revoke the designation of Mr Crouse as the Registrar, had
a negative impact on the rationality of that decision.
The decision
was rendered irrational and invalid
[42]
and susceptible to review and being set aside in terms of, either
PAJA, or the Constitutional principle of legality, or both. The
decision was also procedurally unfair in terms of either or both of
those statutory provisions, because Mr Crouse was not given
a fair
hearing.
[93]
There is no reason in terms of the law and fairness why the costs
should not follow the result, given the facts and circumstances
in
this matter.
[94] In
the result, the appeal is dismissed with costs.
____________________
P Coppin
Judge
of the Labour Appeal Court
I agree
_______________
B Waglay
Judge
President of the Labour Appeal Court
I
agree
__________________
K Ndlovu
Judge
of the Labour Appeal Court
APPEARANCES:
FOR THE
APPELLANT:
D T Skosana SC
MM Mojapelo
Instructed by the State Attorney
FOR THE
FIRST AND SECOND
RESPONDENTS
A P S Nxumalo
Instructed by Thabang Ntshebe
Attorneys
[1]
Act
No 66 of 1995.
[2]
The
duties and functions of the registrar are dealt with later in this
judgment.
[3]
Act
No 2 of 2000.
[4]
The
ruling on this third preliminary point was the
crux
of
the court
a
quo’s
judgment on the merits. I will discuss it in greater detail in due
course.
[5]
2001
(1) SA 1069
(T) at 1075B-D.
[6]
[2009]
12 BLLR 1145 (CC).
[7]
See
particularly at 1163 para 64.
[8]
(2010)
301 ILJ 1377 (LC) para 90.
[9]
2000
(1) SA 1 (CC).
[10]
[2008]
2 BLLR 97
(CC).
[11]
See
at 160 para 194.
[12]
See
Cora Hoexter “
Administrative
Law in South Africa
”
2
nd
ed (Juta 2011) at 218 (Hoexter).
[13]
Act
No 76 of 1998.
[14]
[2014]
12 BLLR 1170 (LAC).
[15]
That
being the Minister’s own contention, and in accordance with
the decision in
Masetlha
v President of the RSA and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) para 68, to the effect that the power to
dismiss was an essential corollary of the power to appoint.
[16]
2010
(4) SA 55
(CC) para 27. See also
Union
of Refugee Women and Others v Director: Private Security Regulatory
Authority and Others
2007 (4) SA 395
(CC) para 70.
[17]
2006
(2) SA 311 (CC).
[18]
See
inter
alia
the
judgments of Chaskalson CJ paras 100 and 128; Ngcobo J (as he then
was) para 446 and that of Sachs J para 586.
[19]
See
Sachs para 586 and Ngcobo J para 446.
[20]
See:
paras 446 and 449 –
New
Clicks
.
[21]
See
inter
alia
SAPU
and Another v National Commission of the South African Police
Service and Another
[2006] 1 BLLR 42
(LC); compare
POPCRU
and Others v Minister of Correctional Services and Others
[2006] 4 BLLR 385
(E); and
Nxele
v Chief Deputy Commissioner Corporate Services, Department of
Correctional Services and Others
[2006] 10 BLLR 960
(LC) and see also
Fredericks
and Others
v
MEC for Education and Training Eastern Cape and Others
[2002] 2 BLLR 119
(CC) and
Chirwa
v Transnet Ltd and Others
[2008]
2 BLLR 97 (CC).
[22]
See:
para 64 of the judgment of Van der Westhuizen J.
[23]
For
example see
POPCRU
and Another v Minister of Correctional Services and Others (supra)
;
Nxele
v Chief Deputy Commissioner Corporate Services, Department of
Correctional Services and Others (supra)
and see also
De
Villiers v Head of Department: Education Western Cape Province
(2010) 31 ILJ 1377 (LC).
[24]
These
principles have been derived from the Constitutional Court’s
decisions in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
(“
SARFU
”)
(
supra
)
paras 141 - 143 and have been restated in
Transnet
Ltd v Goodman Brothers (Pty) Ltd
[2000] ZASCA 151
;
2001
(1) SA 853
(SCA) and also see
De
Villiers v Head of Department, Education Western Cape Province
(supra)
paras 9 - 10.
[25]
See
Masetlha
v President of the RSA and Another (supra)
para 68.
[26]
See:
SARFU
(supra); New Clicks
paras 125 - 126, paras 460 - 461 and para 466; and
Chirwa
para
140.
[27]
See
Grey’s
Marine Houtbaai (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA) para 22.
[28]
See
para 64
Grey’s
Marine (above)
.
[29]
2010
(4) SA 55
(CC) see para 26.
[30]
See
at para 26.
[31]
See:
para 31 where reference was made to Hoexter
Administrative
Law in South Africa
”
(Juta 2007) 358-9;
De
Ville
Judicial
Review of Administrative Action in South Africa
(LexisNexis
Butterworths, Durban 2003)
223-4
and Currie
The
Promotion
of Administrative Justice Act: A
Commentary
2ed
(SiberInk, Cape Town 2007) at
100.
[32]
See
President
of the Republic of South Africa v South African Rugby Football Union
(supra)
para 148.
[33]
2000
(2) SA 674 (CC).
[34]
See:
para 85.
[35]
See:
section 7(2)(a)
of PAJA.
[36]
Mr
Crouse did not cross-appeal in respect of the other grounds that
were not upheld by the court
a
quo
.
[37]
i.e.
the principles stated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635B.
[38]
The
Public Service Act of 1994 (Proclamation No. 103 of 1994). In
particular, sections 7 and 7B of that Act.
[39]
Section
7B(4)(c).
[40]
See
President
of the Republic of South Africa and Others v South African Football
Union and Others (“SARFU
”)
(
supra
)
para 148;
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 58.
[41]
See
Pharmaceutical
Manufacturers Association of South Africa and Another : In Re Ex
Parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 85.
[42]
See
Democratic
Alliance v President of the Republic of South Africa and Others
2013
(1) SA 248
(CC) para 39 also referred to in
MEC
for the Department of Health; Western Cape v Weder; MEC for the
Department of Health; Western Cape v Democratic Nursing Association
of SA on behalf of Mangena
(2014)
35 ILJ 21 35 (LAC) para 35.