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[2015] ZALCJHB 361
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Cindi and Others v Minister of Arts and Culture and Others (J157/14) [2015] ZALCJHB 361 (27 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 157/14
In
the matter between:
LINDIWE
CINDI AND 27
OTHERS
1
st
to 28
th
Applicants
And
MINISTER
OF ARTS AND CULTURE
First
Respondent
PAN
SOUTH AFRICAN LANGUAGES BOARD
Second
Respondent
MXOLISI
ZWANE
Third
Respondent
46
OTHERS
4
th
and
further Respondents
Heard
:
22 October 2015
Delivered
:
27 October 2015
JUDGMENT
VAN
NIEKERK J
[1]
The applicants seek an order in the following terms:
1.
Condoning the late filing of this application;
2.
Declaring unlawful and invalid, the appointment of the third
respondent;
3.
Reviewing and setting aside the second respondent’s appointment
as Administrator
or Acting CEO of the second respondent;
4.
Declaring unlawful and invalid the restructuring undertaken by the
second and
third respondents;
5.
Reviewing and setting aside the restructuring in the second
respondent by the
third respondent;
6
Declaring unlawful and invalid the appointment of 4
th
to 48
th
respondents;
7.
Declaring unlawful and invalid employment contracts entered into by
and between
the second respondent and 4
th
to 48
th
respondent;
8.
Reviewing and setting aside the employment contracts entered into
between the
second and all 4
th
to 48
th
respondent;
9.
That the first, second and third respondent are ordered and directed
to pay the
costs of this application, on a scale as between attorney
and client, jointly and severally…
[2]
The material facts are canvassed in the papers and I do not intend to
repeat them
here. For present purposes, it is sufficient to note that
the events that form the subject of the present application occured
in
a particularly unhappy period in the second respondent’s
history. More directly, the present application has its roots in
in
the applicants’ dissatisfaction at the appointment of the third
respondent as caretaker CEO of the second respondent in
June 2012 and
a restructuring of the second respondent that the third respondent
attempted to introduce, as well as his appointment
of the 4
th
to 48
th
respondents.
[3]
The applicants contend that the appointment of the third respondent
was invalid because
he was appointed by the first respondent rather
than the second respondent’s board as required by s 10 of the
Pan South African
Language Board Act 59 of 1995 (the Act). The
applicants submit that the third respondent’s invalid
appointment had the consequence
that he lacked the necessary powers
and authority to embark on a restructuring of the second respondent
and to appoint the 4
th
to 48
th
respondents,
with the result that their contracts of employment are invalid.
[4]
When the matter was called, it transpired that not all of the
parties’ representatives
had been provided with a full set of
the papers. At a case management meeting held in 2014, a timeline was
introduced, amongst
other things, to regulate the filing of a record
and affidavits. For reasons that are not entirely clear to me, that
intervention
failed to expedite the hearing and certain of the
affidavits were filed only during the week in which the matter had
been set down.
[5]
In the circumstances, it was agreed with the representatives of all
of the parties
that the matter would proceed only in respect of
certain points in
limine
raised by the first respondent. The
first respondent contends that in 2012 the North Gauteng High Court
(per Mokgoatlheng J) dismissed
an application filed by an employee of
the second respondent, one Mxolisi Feni, in which it was sought,
amongst other things, to
set aside the third respondent’s
appointment as administrator and acting chief executive officer of
the second respondent,
and to review and set aside his appointment as
the executive authority of the second respondent. The first
respondent avers that
the court held, in relation to the merits of
the application, that the reference to s 10 of the Act was misguided,
and that the
first respondent was authorised in the circumstances in
terms of section 49 of the PFMA to appoint an accounting authority,
and
that the third respondent’s appointment was validly made in
terms of that section. The first respondent contends that the
relief
sought in the present application is similar both in fact and
substance to the application brought before the High Court
and that
the High Court’s judgment is accordingly dispositive of the
dispute that served before this court.
[6]
In addition, the first respondent contends that since it is common
cause that the
third respondent is no longer the acting CEO and
accounting authority of the second respondent the dispute presented
by the current
proceedings, i.e. the first respondent’s
decision to appoint the third respondent, has become moot. It is not
in dispute
that in 2014, a new board was appointed by the first
respondent and that in 2015 the board appointed a chief executive
officer,
who has assumed office.
[7]
There was consensus during the course of argument that in respect of
the relief sought
in prayers 4 and 5 of the notice of motion (those
prayers that concern the proposed restructuring of the second
respondent by the
third respondent) that the application was indeed
moot, since the new board had reversed the attempts by the third
respondent to
introduce a new organogram or restructuring of the
second respondent’s operation. I need say no more about those
prayers.
[8]
In respect of the relief sought in the remaining prayers, the court
raised the issue
of jurisdiction and in particular, whether the
provisions of s 157 of the Labour Relations Act, or of any other law,
conferred
jurisdiction on this court to determine what on the face of
it, appeared to be a dispute concerning the validity of an
appointment
made by the first respondent in terms of legislation that
fell outside of the purview of this court’s interest. The court
suggested that on the papers, what the applicants appeared to seek
was an administrative law review of the third respondent’s
appointment and the determination of what ultimately appeared to be a
dispute between one group of employees (the applicants) and
another
(the 4
th
to 48
th
respondents). It transpired
during the course of the hearing that the second respondent has
terminated the employment of the 4
th
to 48
th
respondents and that three separate actions of been instituted in
this court to challenge that termination.
[9]
This court is a creature of statute. Section 157 of the LRA provides
that it has exclusive
jurisdiction in respect of all matters that in
terms of the LRA or any other law are to be determined by the court.
The court also
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 where that
violation arises from employment or labour relations, any dispute
over the constitutionality
of any executive or administrative act or
conduct by the state in its capacity as an employer, and the
application of any law for
the administration of which the Minister
of Labour is responsible.
[10]
Jurisdiction is to be determined on the basis of the pleadings (see
Gcaba v Minister of Safety and Security
[2009] 12 BLLR 1145
(CC)). The relief sought in prayers 2 and 3 of the notice of motion,
as I have mentioned above, seek to have the appointment of
the third
respondent declared unlawful and invalid, and to have his appointment
reviewed and set aside. In support of these prayers,
the case made by
the applicants is that the second respondent is a creature of statute
and that in terms of s 10 (1) of the Act,
the board of the second
respondent is enjoined to appoint a CEO at its first meeting or as
soon as practicable thereafter. That
section further provides that
the CEO must in consultation with the Minister appoint staff to
assist with the work arising from
or connected with the performance
of the functions of the second respondent.
[11]
The submission made by the applicants is that only the CEO is
recognised by the Act to be the
administrative head of the second
respondent and only the CEO is entitled to appoint staff. It is
submitted further that the third
respondent’s appointment was
made in breach of the provisions of s 10 (1) of the Act and that in
consequence, he could not
validly assume the powers conferred on a
CEO. Further, it is contended that there is no provision in the Act
for the appointment
of an acting or caretaker CEO or administrator
and to the extent that the third respondent was so appointed, the
first respondent
exercised powers that he did not have and that the
third respondent’s appointment is therefore invalid.
[12]
While not clearly articulated in the founding affidavit, the basis of
the attack on the third
respondent’s appointment appears to be
one based on the principle of legality. The wording of prayer 3 might
suggest that
what is sought in addition is a review and setting aside
of the appointment associated with an administrative law remedy.
There
is no particular reference in the pleadings to the Promotion of
Administrative Justice Act but of course, there is a close
relationship
between the grounds for review under that Act and the
content of the legality principle. What matters for present purposes
is whether
it can be said that in the present instance, the pleaded
claim is one in respect of which this court has jurisdiction either
because
the LRA or some other law require this court to determine
that matter, or because the cause of action pleaded by the applicants
bring their claim within the purview of s 157 (2) of the LRA.
[13]
In relation to the first enquiry, there is nothing in the LRA that
requires the present dispute
to be determined by this court. Indeed,
the LRA broadly contemplates that this court is empowered to
determine disputes between
employers and employees that the Act or
some other statute require to be adjudicated by the court. There is
no statutory provision
that requires that this court determine any
dispute about the validity of an appointment by a minister of the
chief executive officer
of the second respondent. Insofar as s157 (2)
provides that this court has jurisdiction in respect of any alleged
or threatened
violation of a fundamental right where that arises from
employment, or any dispute over the constitutionality of any
executive
or administrative act or conduct, the applicants do not
make a case to the effect that the first respondent’s conduct
in
appointing the third respondent is a threatened violation of any
fundamental right, or that it arises from employment and labour
relations, or that it is an act or conduct committed by the state in
its capacity as an employer. The applicant’s claim,
as I have
indicated, is no more than that the first respondent’s
appointment of the third respondent constituted a breach
of s10 of
the Act because that section did not empower him to make the
appointment.
[14]
During argument, Mr Faku, who represented the applicants, could do no
more than submit that the
consequences of the third respondent’s
appointment relate to employment and employment relationships. This
is not the case
pleaded, nor is it sufficient in itself to confer
jurisdiction on this court. The case that the applicants have pleaded
is that
by appointing the third respondent, the second respondent
breached the provisions of a statute that requires the appointment to
be made by the second respondent’s board and by no-one else.
It follows that insofar as prayers 2 and 3 are concerned,
this
court has no jurisdiction to entertain the present application.
[15]
Turning then to prayers 6, 7 and 8, the relief sought, in broad
terms, is that the appointments of
the 4
th
to 48
th
respondents and their contracts of employment with the second
respondent are unlawful and invalid. The validity of a contract of
employment is a matter over which this court potentially has
jurisdiction, by virtue of
s 77
(3) of the
Basic Conditions of
Employment Act, 75 of 1997
. In such instances, the dispute between
the parties must necessarily arise from a contract of employment. The
relief sought in
prayers 6, 7 and 8 is predicted on the relief sought
in prayers 2 and 3. In other words, the applicants’ case is
that the
fourth and further respondents were invalidly appointed
because, and only because, of the third respondent’s invalid
appointment.
This much is apparent from paragraph 8.1.13 of the
founding affidavit where the deponent avers that the appointment of
the fourth
and further respondents is unlawful and invalid ‘
for
the reason of the fact that the third respondent was not properly
appointed and has no powers or authority to make the appointments
and
that due processes were not followed in their appointments’
.
Although the applicants seek to set aside the contracts of employment
of the fourth and further respondents, their cause of action
is
manifestly not one based on the application of any contractual
principles. For these reasons,
s 77(3)
of the BCEA has no application
and in the absence of any case made out that would otherwise bring
prayers 6, 7 and 8 within the
scope of
s 157
(1) or (2), this court
has no jurisdiction to entertain them.
[16]
It is therefore neither necessary nor appropriate for me to consider
the defences of
res judicata
or issue estoppel and in
particular, whether the judgment by the High Court is dispositive of
the applicants’ contention
that the third respondent and the
4th and further respondents were invalidly appointed by the first
respondent and the third respondent
respectively. In consequence, it
follows that this issue remains alive for other purposes,
particularly in any proceedings in which
the validity of the
appointments concerned is raised by way of a cause of action in
respect of which this court is empowered to
exercise jurisdiction.
The validity of the appointments of the third and 4
th
to
further respondents and the consequences of the High Court’s
judgment may well constitute a collateral issue that this
court will
be required to decide. For present purposes however, given the causes
of action on which the applicants rely and my
finding that this court
lacks jurisdiction to determine them, I need say no more about the
merits or otherwise of that defence.
[17]
Finally, this court has a broad discretion in terms of
s 162
of the
LRA to make orders for costs by reference to the requirements of the
law and fairness. I must necessarily take into account
that this is a
long-standing dispute in which the applicants seek to have their
grievances regarding events concerning the third
respondent’s
appointment and its consequences addressed. This dispute is by no
means resolved and in my view, the appropriate
order should be that
each party bears its own costs.
[18]
For the above reason, I make the following order:
1.
The
application is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Mr. T Faku, Faku Attorneys
For
the First Respondent: Adv. T Ntsonkota instructed by Cheadle Thompson
and Haysom Inc.
For
the Second Respondent: Adv. D J Vetten instructed by Makhafola
Verster Attorneys
For
the Third Respondent: Mr. M B Mokoena, MB Mokoena Attorneys
For
the Fourth and 16th Respondents: Mr. M B Mokoena, instructed by
Maluleke Seriti Makume Matlala Inc.
For
Further Respondents: Adv. L Maunatlala instructed by Majang Inc.
Attorneys