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[2017] ZALCD 21
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Mhlongo v Minister of Education, KwaZulu Natal and Others (D189/15) [2017] ZALCD 21 (25 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D189/15
In
the matter between:
NDUDUZO
FORTUNE MHLONGO
Applicant
and
MINISTER OF
EDUCATION, KWA-ZULU NATAL
First Respondent
HEAD OF DEPARTMENT
OF EDUCATION, KZN
.
Second Respondent
NKOSINATHI CHONCO
PHUMELELA NKOSI
RAYSELAN NAIDOO
DAVE AITKEN
PINETOWN
BOYS HIGH SCHOOL
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Heard:
19 October 2017
Delivered:
25 October 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
In his
Notice of Motion, the applicant seeks an order that;
a)
‘
The
KwaZulu-Natal Department of Education’s failure to take a
decision concerning the complaints of victimization, fraud and
abuse
of power perpetrated by the fifth and sixth respondents against the
applicant respectively, as previously reported to the
KwaZulu Natal
Department of Education, be reviewed and such complaints be
considered by this Department in terms of Chapter
5, section 17
(2) and section 18 (2) of the Employment of Educators Act, 76 of 1998
b)
……
c)
That
the late filing of this application and any non-compliance with the
Rules be condoned in terms of the Rules of this Court,
PAJA, and
section 158 (1) (8) of the Labour Relations Act’
[2]
The
applicant is an Educator at the seventh respondent (Pinetown Boys
High School). The respondents include the MEC for Education,
the Head
of Provincial Department of Education, the Pinetown District Director
of Education, the Superintendent of Education, the
Principal and
Deputy Principal of the School, and the School itself.
[3]
The
applicant’s application is 105 pages long and it was difficult
to make sense of his case as he had raised complaints dating
back as
far as 2012, which ranged from the school’s choir no longer
singing isiZulu songs during school functions; the failure
of the
school to invite SADTU to be involved in shortlisting processes of
candidates for positions; differences in income
paid to
educators; failure to pay incentives and bonuses; failure to hold
meetings with staff; the non-representative nature of
the School
Management Team; the disproportionate allocation of teaching subjects
to educators, the failure of the school to embrace
democratic values,
and to practice open , participative and accountable governance; the
continued oppression of Africans at the
school, the failure on the
part of the school. He further complained of victimisation on account
of his association with SADTU.
[4]
Within this
minefield, the Court identified key central topics in the application
which formed the basis of the review, and which
the applicant had
conceded that indeed they were the source of his complaint. These
were that;
a)
The
Department failed to take action after he had reported fraudulent
activities on the part of the fifth respondent and abuse of
power;
b)
The
Department failed to take any decision in regards to claims that he
had been subjected to victimisation in the workplace, particularly
as
a result of the allegations of fraud he had made to the
school’s Governing Body
c)
Two IRP5
forms were issued to the applicant in the same year by the school,
which implies that accounting records were not kept.
The auditors of
the school had a business relationship with the School, hence the
former failed to properly investigate his allegations
of fraud
d)
The fifth
respondent unreasonably instructed the sixth respondent to have the
school’s computer programme shut down before
he (applicant)
could finish capturing the marks for the term
e)
Continuous
victimisation since 2012 by the fifth respondent, who had also abused
his powers
[5]
The
respondents in the light of the applicant’s multiple claims and
allegations raised the question whether the Court had
the requisite
jurisdiction to determine the review application. The Court having
expressed the same concerns with the applicant
after going through
the various issues he had raised in his application, he nevertheless
insisted that he wanted reasons as to
why the court could not assume
jurisdiction in this matter, his contention being that the provisions
of section 157 of the LRA
enjoined the Court to determine the matter.
[6]
The
reliance by the applicant on the provisions of section 157 of the LRA
is a matter that was not pleaded in his papers, and it
simply came
from the bar. In seeking a review, the applicant relied on various
provisions of the Constitution of the Republic,
specifically sections
38 (a), 9, 33, 172 (1) (a) and section 8 (2) of Promotion of
Administrative Justice Act 2000 (PAJA). He further
seeks that the
alleged failure to take a decision by the Department be reviewed, and
that the complaints be considered by the Department
in terms of
sections 17 (2) and 18 (2) of the Educators Act.
The
Preliminary Points:
[7]
The
Respondent pointed out that the alleged failure to take a decision
regarding the applicant’s complaint arose in May 2013,
or
alternatively in March 2014. The complaints date back to
2012/2013/2014, and the review application was only launched in
February
2015. Section 7 (1) of PJA set down time frames within which
institution of proceedings for a judicial review may be launched.
Thus, in the absence of an application for condonation, the Court
lacked jurisdiction to determine the application.
[8]
There is
merit in the respondents’ contentions that the Court lacks
jurisdiction to determine the matter to the extent that
the applicant
relies on the provisions of PAJA, more particularly its section 7
(1). However other than the failure to comply with
the prescripts in
launching proceedings in terms of the PAJA, it is trite that
generally,
employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. Thus, when
a
grievance is raised by an employee relating to the conduct of the
state as employer and it has few or no direct implications
or
consequences for other citizens, it does not constitute
administrative action
[1]
.
[9]
Amongst
the issues raised by the applicant in seeking a review is that he was
subjected to victimisation and abuse of power for
raising issues
surrounding fraud or being associated with SADTU. The provisions of
section 187 (2) of LRA are available to the
applicant, and there is
no basis for him to bypass all other statutory dispute resolution
mechanisms contained in sections 135
and 191 of the LRA and directly
approach the court.
[10]
The
respondents further pointed out that to the extent that the applicant
still relied on the provisions of PAJA, its section 7
(2) (a)
required of him to have first exhausted his internal remedies in
terms of the applicable statutory enactments available
to him,
including remedies available in terms of the Educators Act. In this
case, the applicant had not done so.
[11]
During
argument, I had pointed out to the applicant that even if there was
merit in the complaints that he had raised, certain aspects
of those
complaints, required the attention of the relevant authorities
including
inter
alia
,
the South African Receiver of Revenue, the National Prosecuting
Authority or even the South African Police Service. In essence
therefore, and further based on the preliminary points raised, it
follows that this Court does not have jurisdiction to deal with
review application as launched by the applicant.
[12]
The
respondents sought a cost order in the event that the applicant was
unsuccessful. It is my view that the applicant’s application
raises issues of concern which if proven, may have repercussions for
the respondents. This application however was ill-considered
as some
of the issues raised are not for this Court to determine, and the
applicant could not have been seen as a means for the
applicant to
achieve his ends whether noble or otherwise. In this regard, and
having had account of considerations of law and fairness,
I do not
deem it warranted to make an order of costs.
Order:
i.
The
preliminary points raised by the respondents are upheld.
ii.
The
Court lacks the requisite jurisdiction to determine the review
application.
iii.
There
is no order as to costs.
__________________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
In Person
On
behalf of the Respondent:
Adv. D Pillay
Instructed
by:
State Attorney
[1]
Gcaba v Minister for Safety and Security and
Others
[2009] 12 BLLR 1145
(CC)
at
para 64