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[2001] ZACC 6
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Fredericks and Others v MEC for Education and Training Eastern Cape and Others (CCT 27/01) [2001] ZACC 6; 2002 (2) BCLR 113 (CC); 2002 (2) SA 693 (CC); [2002] 2 BLLR 119 (CC); (2002) 23 ILJ 81 (CC) (4 December 2001)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
27/01
M FREDERICKS and 47 OTHERS Applicants
versus
MEC
FOR EDUCATION AND TRAINING, EASTERN CAPE First Respondent
PERMANENT
SECRETARY, EDUCATION,
CULTURE AND SPORT Second Respondent
MINISTER OF EDUCATION Third Respondent
Heard on : 4
September 2001
Decided on : 4 December
2001
JUDGMENT
O’REGAN J:
[1] This case concerns the
scope of the jurisdiction of the High Court to determine certain complaints
arising out of an employment
relationship. The applicants are teachers in the
employ of the Department of Education in the Eastern
Cape.
[1]
Towards the end of 1996,
they applied to be retrenched voluntarily by the Department but their
applications were refused. They
sought to challenge that refusal in the Eastern
Cape High Court (the High Court) contending that it constituted a breach of
their
right to equality in terms of section 9 of the Constitution and a breach
of their right to administrative justice in terms of section
33. They sought
relief against the MEC for Education and Training in the Eastern Cape (the first
respondent), the Permanent Secretary
for Education, Culture and Sport in the
Eastern Cape (the second respondent) and the national Minister of Education (the
third respondent).
A full bench of the High Court held that it did not have
jurisdiction in the matter, on the basis that on a proper construction
of the
Labour Relations Act, 66 of 1995
its jurisdiction to consider their claims had
been ousted by the relevant provisions of that Act. The applicants then
approached
this Court for leave to appeal.
[2] The High Court granted a
positive certificate in terms of
rule 18
of the rules of this
Court,
[2]
thus declaring that the
decision in the case concerned a constitutional matter of substance upon which
it would be desirable for
this Court to make a ruling. The case turns largely
on the proper interpretation of the provisions of the
Labour Relations Act, and
the question of this Court’s jurisdiction to adjudicate in this matter
needs consideration.
[3] The following provisions of the Constitution
are relevant to our determination of this matter. Section 169 provides:
“A High Court may decide
—
(a) any constitutional matter except a matter that
—
(i) only the Constitutional
Court may decide; or
(ii) is assigned by an Act of Parliament to another court of a status similar
to a High Court; and
(b) any other matter not assigned to another court by an Act of
Parliament.”
Section 167(3)
of the Constitution provides:
“The Constitutional Court
—
(a) is the highest court in all constitutional matters;
(b) may decide only constitutional matters, and issues connected with decisions
on constitutional matters; and
(c) makes the final decision whether a matter is a constitutional matter or
whether an issue is connected with a decision on a constitutional
matter.”
This makes it clear
that this Court is the final court of appeal in constitutional matters and that
it determines in the final instance
whether a matter is a constitutional matter
or not.
[4] According to the applicants, their claim is based on an
infringement of sections 9 and 33 of the Constitution. The respondents
contend
that this is not in effect a constitutional matter but in reality a labour
matter. There are therefore two related questions
before this Court. The first
is whether the applicants’ claim raises a “constitutional
matter” as contemplated
by sections 167 and 169 of the Constitution. If
it does, the second question is whether it is a matter that falls within the
jurisdiction
of the High Court. The answer to these questions turns on a
consideration of the Constitution and an analysis of the provisions
of the
Labour Relations Act. It
will be useful first to set out the facts upon which
the applicants based their claim.
[5] After the first democratic
elections in 1994 that were accompanied by the amalgamation of a range of
educational departments,
the national and provincial departments of education
realised that they needed to reduce the number of teachers in their employ.
To
this end, an agreement was reached at the Education Labour Relations Council
concerning, amongst other things, a process of voluntary
retrenchment whereby
teachers would be permitted to apply for voluntary severance packages. This
agreement was reached on 30 April
1996 and was referred to by the parties in
this Court as “Resolution 3”. On 31 May 1996 Resolution 3 was
published for
notice in
Regulation Gazette
5711 (published in Government
Notice R912 in the
Government Gazette
17226) in terms of section 12(6) of
the Education Labour Relations Act 146 of 1993 by the Minister of Education. On
1 July 1996, the
terms of Resolution 3 were extended in terms of the same
provision of that Act to all employers and employees covered by that
Act.
[3]
The voluntary severance
package arranged was set out in section 1.9(a)(i) of that agreement that
provided:
“Any educator may volunteer for a severance package ... in order to allow
educators who prefer to leave the service, to do
so and to create room for the
absorption of educators who are in excess.”
[6] The process required applicants to
complete an application for voluntary severance that then had to be forwarded to
a series
of functionaries for approval. The chairperson of the governing body
or head of the educational institution in which the applicant
worked, the
Regional Director of the provincial education department, the director of
personnel administration in the provincial
education department and finally the
second respondent, head of the provincial education department, all had to
approve the application.
[7] Initially the applications for voluntary
severance packages in the Eastern Cape were granted. From about December 1996,
however,
the process for the approval of applications was altered and many were
refused. The applicants in this case allege that no reason
was given for this
change in approach, and neither the applicants, nor the trade unions in the
Education Labour Relations Council
were consulted about the change in procedure.
Many applicants appealed the decision to refuse their applications to the first
respondent
but without success.
[8] The applicants approached the High
Court for an order (a) setting aside the decision not to grant voluntary
severance packages
to the applicants; and (b) ordering the respondents to
approve the applications for voluntary severance packages, alternatively,
directing them properly to consider the applications for severance
packages.
[9] The respondents opposed the application but in their
answering affidavit, made by the Superintendent-General of the provincial
department of education, barely addressed the facts. The nub of their
opposition was based on an argument that the High Court had
no jurisdiction to
adjudicate upon the claim. For the purposes of this application it must be
accepted therefore that the respondents
do not dispute the facts alleged by the
applicants.
[10] As this Court observed in
S v Boesak
2001(1) SA
912 (CC)
[2000] ZACC 25
; ;
2001 (1) BCLR 36
(CC) at para 13, the Constitution provides no
definition of “constitutional matter”. What is a constitutional
matter
must be gleaned from a reading of the Constitution itself:
“If regard is had to the provisions of s 172(1)(a) and s 167(4)(a) of the
Constitution, constitutional matters must include
disputes as to whether any law
or conduct is inconsistent with the Constitution, as well as issues concerning
the status, powers
and functions of an organ of State. Under s 167(7), the
interpretation, application and upholding of the Constitution are also
constitutional
matters. So too, under s 39(2), is the question whether the
interpretation of any legislation or the development of the common law
promotes
the spirit, purport and objects of the Bill of Rights. If regard is had to this
and to the wide scope and application of
the Bill of Rights, and to the other
detailed provisions of the Constitution, such as the allocation of powers to
various legislatures
and structures of government, the jurisdiction vested in
the Constitutional Court to determine constitutional matters and issues
connected with decisions on constitutional matters is clearly an extensive
jurisdiction.”
[4]
[11] In
this case, the applicants have alleged an infringement of their rights under
sections 9 and 33 of the Constitution. The
respondents who are alleged to have
infringed the rights are all bound to observe the provisions of the Bill of
Rights in terms of
section 8(1) of the
Constitution.
[5]
The applicants do
not allege a breach of any specific term of Resolution 3 nor do they rely on the
common law of contract for the
purposes of their
claim.
[6]
In essence, their section
33 claim is that the state acting in its capacity as employer did not act
procedurally fairly in the administration
of Resolution 3, and in particular, in
the consideration of their applications for voluntary retrenchment. Their
challenge is based
on their right to administrative justice. The section 9
challenge is based on the differential treatment afforded to them compared
to
the treatment afforded to employees who had earlier applied for and been granted
voluntary retrenchment in terms of Resolution
3. Whether the applicants’
claim has merit or not can have no bearing on whether their claim raises a
constitutional matter.
What is clear is that this case stands or falls on the
reliance on section 9 and section 33 and is not founded on any express
contractual
undertaking stipulated in Resolution 3. The applicants are alleging
that conduct of the respondents is in conflict with the Constitution
and invalid
because of an infringement of the Bill of Rights. Such a claim raises a
constitutional matter that will fall, in the
final instance, to be determined by
this Court. The next question for consideration is whether the High Court has
jurisdiction in
respect of this claim or not.
[12] This question raises
the issue of the jurisdiction of the High Court to determine a constitutional
matter. The High Court’s
jurisdiction over constitutional matters is
conferred by section 169 of the Constitution which constitutionally entrenches
the High
Court’s jurisdiction to entertain constitutional matters. That
jurisdiction is not absolute — the High Court has no
jurisdiction in
circumstances where this Court has exclusive jurisdiction to decide a
constitutional matter, nor does it have jurisdiction
where Parliament has
assigned the determination of the constitutional matter to another court of
similar status to the High Court.
However, it is clear that Parliament may only
restrict the jurisdiction of the High Court where it assigns the relevant
constitutional
jurisdiction to a court of similar status to a High Court.
Whether the restriction on the jurisdiction of the High Court complies
with
section 169 or not will always raise a constitutional matter. Given the express
constitutional provision conferring jurisdiction
to determine constitutional
matters upon the High Court, the question of the ambit of the restriction of the
High Court’s jurisdiction
in terms of section 169 in constitutional
matters is therefore also a constitutional matter. The question of whether the
Labour
Relations Act has by virtue of section 169 restricted the High
Court’s jurisdiction to determine a constitutional matter is
therefore a
constitutional question that falls within the jurisdiction of this
Court.
[13] It will now be helpful to outline the reasoning of the court
below. White J held that the High Court had no jurisdiction to
hear the case
because Resolution 3 constituted a collective agreement as contemplated by
section 24 of the Labour Relations Act.
That section requires all collective
agreements to contain a procedure for the resolution of disputes arising out of
their interpretation
or
application.
[7]
Section 24 also
provides that if a collective agreement does not contain a dispute procedure,
any party to a dispute about the interpretation
or application of that agreement
may refer that dispute to the Commission for Conciliation, Mediation and
Arbitration (the CCMA).
[8]
The CCMA
is then required to resolve the dispute through conciliation. If the dispute
remains unresolved, the section provides
that any party may refer the dispute to
arbitration by the CCMA.
[9]
A review
lies to the Labour Court in respect of the
arbitration.
1
[0]
[14] White
J held that the provisions of section 24 are mandatory and that “they oust
the jurisdiction of the courts to deal
with such disputes.” He relied on
a High Court judgment
IMATU v Northern Pretoria Metropolitan Substructure and
Others
1999 (2) SA 234
(T) that held that a High Court had no jurisdiction
to adjudicate a dispute arising from the interpretation or application of a
collective
agreement. The question whether the High Court’s jurisdiction
to determine a constitutional matter had been ousted by section
24 was not
considered in
IMATU
’s case. White J concluded therefore that the
High Court had no jurisdiction to entertain the claim and dismissed their
application.
[15] Before deciding whether the High Court was correct in
concluding that section 24 of the Labour Relations Act ousted its jurisdiction,
it is necessary to decide whether the provisions of that Act had any application
to the dispute in this case. In order to decide
this question, we must consider
the provisions of the Labour Relations Act and, in particular, the transitional
provisions contained
in schedule 7 of the Act. Item 12 (2) of that schedule
provides that –
“An agreement promulgated in terms of section 12 of the Education Labour
Relations Act and in force immediately before the
commencement of this Act
remains in force for a period of 18 months after the commencement of this Act or
until the expiry of that
agreement, whichever is the shorter period, as if the
provisions of that Act had not been repealed.”
This provision covers Resolution 3 which was an
agreement in terms of section 12 of the Education Labour Relations Act that was
promulgated
by the Minister in July 1996 before the commencement of the Labour
Relations Act on 11 November 1996 and was therefore in force before
the
commencement of that Act. What is the effect of this transitional provision on
disputes that arise in relation to Resolution
3?
[16] According to our
common law, provisions of a statute do not, unless the contrary is stipulated,
have retrospective effect.
They do not affect vested rights or obligations.
However, provisions that regulate procedural rather than substantive matters
ordinarily
have immediate effect on all disputes even if they arose prior to the
enactment of the legislation. In
Curtis v Johannesburg Municipality
1906
TS 308
at 312 Innes CJ held that:
“Every law regulating legal procedure must, in the absence of express
provision to the contrary, necessarily govern, so far
as it is applicable, the
procedure in every suit which comes to trial after the date of its promulgation.
Its prospective operation
would not be complete if this were not so, and it must
regulate all such procedure even though the cause of action arose before the
date of promulgation, and even though the suit may have been then pending. To
the extent to which it does that, but to no greater
extent, a law dealing with
procedure is said to be retrospective. Whether the expression is an accurate
one is open to doubt, but
it is a convenient way of stating the fact that every
alteration in procedure applies to every case subsequently tried, no matter
when
such case began or when the cause of action
arose.”
1
[1]
It
is not always easy to tell whether a statutory provision is purely procedural in
effect or not.
1
[2]
To avoid
confusion, therefore, many statutes that repeal other statutes expressly
regulate their transitional effect. Schedule
7 to the Labour Relations Act is
titled “Transitional Arrangements” and item 12(2) should be read and
understood in this
context.
[17] A similar (but not identical) provision
to item 12(2) is item 12(1)(a) of the same schedule. It relates not to
education sector
agreements but to industrial council agreements promulgated by
the Minister in terms section of 48 of the former Labour Relations
Act, Act 28
of 1956. It provides as follows:
“Any agreement promulgated in terms of section 48, any award binding in
terms of sections 49 and 50, and any order made in
terms of section 51A, of the
Labour Relations Act and in force immediately before the commencement of this
Act, remains in force
and enforceable, subject to paragraphs (b) and (c) of this
subitem, and to subitem (5B), for a period of 18 months after the commencement
of this Act or until the expiry of that agreement, award or order, whichever is
the shorter period, in all respects, as if the Labour
Relations Act had not been
repealed.”
[18] The meaning of this
provision was recently considered by the Supreme Court of Appeal in the case of
Coin Security Group (Pty) Ltd v Minister of Labour and
Others
.
1
[3]
In that case, the
Supreme Court of Appeal was concerned with a demarcation dispute arising out of
an industrial council agreement
that had been promulgated in terms of section 48
of the 1956 Labour Relations Act. One of the questions before the court was
which
statutory dispute procedure should be followed in relation to disputes
arising from the agreement — that provided in the 1956
Labour Relations
Act or that provided in the 1995 Labour Relations Act. Streicher JA, on behalf
of a unanimous court, held that
item 12(1)(a) meant that the dispute procedures
of the 1956 Labour Relations Act must be followed.
[19] A similar
conclusion was reached by the Labour Appeal Court in
Bargaining Council for
the Clothing Industry (Natal) v Confederation of Employers of Southern Africa
and Others
(1999) 20 ILJ 1695 (LAC) at para 20 where Ngcobo AJP
held:
“In seeking the answer to the question presented here, the general policy
of the LRA [Labour Relations Act] cannot, therefore,
be overlooked. That policy
was that insofar as the industrial council agreements are concerned everything
was to continue exactly
as before and all provisions applicable to the
industrial council agreements were to continue to operate during the
transitional
period. If that was the intention of the legislature, it would be
going against that intention to hold that the legislature did
not intend to
preserve the enforcement mechanisms provided for in the repealed Act during the
transitional period ...”.
Both the Supreme
Court of Appeal and the Labour Appeal Court have therefore concluded that item
12(1)(a) means that the enforcement
mechanisms under the repealed legislation
must be followed for the transitional period and not the procedures set out in
the new
Labour Relations Act.
[20] The terms of items 12(1)(a) and
12(2) are very similar. They both provide that agreements promulgated remain
“in force”
as if the repealed legislation has not been repealed.
There are several key differences however. The first is that item 12(1)(a)
includes the phrase “and enforceable” but item 12(2) does not. A
second is that item 12(1)(a) is concerned with industrial
council agreements
promulgated under the 1956 Labour Relations Act, while item 12(2) is concerned
with agreements concluded by the
Education Labour Relations Council and
promulgated in terms of the Education Labour Relations Act.
[21] Item
12(2) states simply that promulgated agreements shall remain “in
force” as if the provisions of the Education
Labour Relations Act had not
been repealed. The
Concise Oxford English Dictionary
(1990 edition)
states that “in force” means “valid” and
“effective”. On its face, therefore,
the subitem provides that the
agreements shall remain effective as if the Education Labour Relations Act had
not been repealed.
As such, item 12(2) could be interpreted in two ways: it
could be interpreted to mean simply that the legal efficacy of promulgated
agreements is preserved despite the repeal of the legislation in terms of which
they were promulgated; or it could mean both that
their legal efficacy is
preserved and the method of their enforcement shall remain unchanged. This was
the meaning the SCA attributed
to item 12(1)(a) in the
Coin Security
case
(see paragraph 18 above).
[22] Determining the effect of item 12(2) is
by no means an easy exercise in interpretation. There are conflicting
indications in
the schedule as to the meaning that should be attached to it. I
have concluded, however, for several reasons that the narrower of
the two
meanings is the proper one. First, the exclusion of the words “and
enforceable” from item 12(2) renders a meaning
narrower than that borne by
item 12(1)(a) more appropriate to the plain language of the provision. I am
mindful that both the Supreme
Court of Appeal and the Labour Appeal Court have
expressly stated that the inclusion of the words “and enforceable”
in
item 12(1)(a) adds nothing to the meaning of
12(1)(a).
1
[4]
However, in both
cases the courts were not concerned with and did not consider the differences in
wording between item 12(1)(a)
and item 12(2) but were concerned with other
arguments not relevant to the present matter. The fact that different language
was
used for the two provisions is a powerful suggestion of a different
legislative purpose sought to be achieved. If the legislature
had intended to
achieve the same purposes by items 12(1)(a) and 12(2) — which are, indeed,
all but neighbouring provisions
— it would have been a simple matter to
have adopted the same language in both provisions. Instead, the legislature
chose
not to include the words “and enforceable” in item 12(2)
although the phrase has been used in item 12(1)(a). The absence
of the direct
reference to enforceability in item 12(2) is a strong indication that the
purpose of 12(2) was different from that
of item 12(1)(a). In item 12(2), the
legislature sought to regulate validity only and not enforcement.
[23] A
further difference between item 12(1)(a) and 12(2) is that the former provision
is concerned with industrial council agreements
promulgated in terms of section
48 of the 1956 Labour Relations Act while the latter is concerned with
agreements promulgated in
terms of the Education Labour Relations Act.
Industrial Council agreements are specifically excluded from the definition of
“collective
agreement” by item 13(1)(b) of schedule 7 while
education council agreements are
not.
1
[5]
On the other hand,
agreements concluded at the Education Labour Relations Council and promulgated
by the Minister are not excluded
from the definition of “collective
agreement” in the same fashion. This is another factor that indicates
that the legislature
sought a different manner of enforcing education agreements
in the transitional period to that adopted for industrial council
agreements.
[24] A final factor that tips the balance in favour of a
narrow interpretation is the fact that the schedule provides separately
for the
manner in which pending disputes should be dealt with. Item 21 in Part E of
schedule 7, subtitled “Disputes and courts”
provides that disputes
that arose before the commencement of the Labour Relations Act must be dealt
with in terms of the appropriate
legislation repealed by the new
Act.
1
[6]
The implicit corollary is
that disputes that arise after the new Act came into force, in other words after
11 November 1996, should
be dealt with in terms of the procedures provided for
in the new legislation. The omission of the words “and enforceable”
in item 12(2) suggests that the general provisions regulating pending disputes
should regulate the enforceability of education sector
agreements while the
inclusion of those words in item 12(1)(a) indicates that the enforceability of
industrial council agreements
shall continue to be regulated under the old law.
The dispute in the current case arose in early 1997 and therefore after the new
Act was in force. Item 21 provides that the cut-off for the old dispute
procedures was to be determined by the date upon which the
dispute arose. If it
arose before the new legislation, the old procedures should continue to be
followed. If it arose after the
new legislation, the new procedures should be
adopted. This interpretation was given to item 12(2) by the Labour Court in the
case
of
Adonis v Western Cape Education Department
[2005] ZALC 22
;
[1998] 6 BLLR 564
(LC)
at paras 23-5.
[25] I accordingly conclude that the narrower
interpretation is more in accordance with the overall purpose of the 1995 Labour
Relations
Act. Disputes having some basis in Resolution 3 must therefore follow
the procedures that are provided in the new Labour Relations
Act.
[26] White J held that Resolution 3 constituted a “collective
agreement” as contemplated by section 24 of the Labour
Relations Act and
that therefore disputes relating to its interpretation or application had to be
considered by the CCMA as required
by section 24.
[27]
“Collective agreement” is defined in section 213 of the Act as
follows:
“‘Collective agreement’ means a written agreement concerning
terms and conditions of employment or any other matter
of mutual interest
concluded by one or more registered trade unions, on the one hand, and, on the
other hand,—
(a) one or more employers;
(b) one or more registered employers’ organisations; or
(c) one or more employers and one or more registered employers’
organisations.”
Resolution
3, as stated above, was entered into before the Act came into force. Item 13(1)
of schedule 7 defines “agreement”
for the purposes of item 13 as
excluding “an agreement promulgated in terms of section 48 of the Labour
Relations Act”.
No mention is made in the schedules of agreements
promulgated in terms of other labour legislation. This leaves the precise status
of Resolution 3 somewhat uncertain. There are strong indications, however, that
Resolution 3 is to be deemed a collective agreement
for the purposes of the new
Act. First, it was an agreement entered into in the Education Labour Relations
Council (“the Council”)
on 30 April 1996. The Council was an
institution established for the purposes of collective bargaining whose members
were employer
and employee
organisations.
1
[7]
Resolution 3
certainly regulated matters of mutual interest to employers and employees in
that it provided for the “right-sizing”
of the number of teachers in
the employ of the Department of Education and for the establishment of a
learner-educator ratio throughout
the Department’s schools. It therefore
fell within the broad ambit of the definition of “collective
agreement”
provided in section 213 of the Labour Relations Act.
[28] A counter-indication is the fact that Resolution 3 was extended by the
Minister of Education to all employers and employees
governed by the Education
Labour Relations Act in terms of section 12(6)(a) of that Act on 1 July
1996
1
[8]
before the Labour Relations
Act came into force.
1
[9]
Section
12(6)(a) is closely modelled on section 48 of the 1956 Labour Relations Act that
also permitted the extension of the provisions
of collective agreements to
non-parties.
2
[0]
The procedure
whereby collective agreements concluded at bargaining councils may be extended
to other employees in an industry by
the Minister of Labour has been a feature
of South African labour law since
1923.
2
[1]
It was well-established
in our law that once an agreement was promulgated in this way, its status and
binding force derived from
the fact that it became a form of delegated
legislation.
2
[2]
In the
Coin
Security
case,
2
[3]
the Supreme
Court of Appeal stated that an industrial council agreement promulgated in terms
of section 48 of the 1956 Labour Relations
Act is not a collective agreement for
the purposes of the new Act.
2
[4]
As
noted above, industrial council agreements promulgated in terms of section 48 of
the old Labour Relations Act are expressly excluded
from the definition of
“collective agreement” by item 13(1)(b). However, no similar
exclusion applies to education agreements.
Indeed, item 13(2) provides that all
agreements in force at the time the new Act came into operation shall be deemed
to be collective
agreements for the purposes of that Act. There is accordingly
much to be said for the view that Resolution 3 should be deemed a
collective
agreement for the purposes of the new Act. However, it is not necessary to
decide this complex question finally for even
if Resolution 3 does constitute a
collective agreement, the dispute in this case is not a dispute that must be
resolved by arbitration
in terms of section 24 of the Labour Relations Act as I
now explain. I shall assume, therefore without deciding, that Resolution
3 does
constitute a collective agreement.
[29] The next issue that arises is
whether section 24 ousts the jurisdiction of the High Court to determine
disputes that raise constitutional
matters that are connected with collective
agreements. This could only have been done constitutionally if the
determination of such
disputes had been assigned to another court of equivalent
status. This is because the High Court’s jurisdiction over constitutional
matters is conferred and entrenched by section 169 of the
Constitution.
2
[5]
That jurisdiction
may be restricted by an Act of Parliament only where it assigns the
determination of the relevant constitutional
matter to a court of similar status
to a High Court.
[30] White J held that section 24 ousted the
jurisdiction of the High Court to adjudicate upon any dispute arising out of the
interpretation
or application of a collective agreement, apparently even where
the claim is founded on a breach of constitutional rights. It appears
however
that the provisions of section 169 were not drawn to the High Court’s
attention, nor were they debated before the Court.
It is quite clear from the
provisions of the Labour Relations Act that the CCMA is not a court, and, in
particular, not a court
of equivalent jurisdiction to the High
Court.
2
[6]
If section 24 requires
that all disputes concerning the interpretation or application of collective
agreements, even where those
disputes are founded on an alleged infringement of
constitutional rights, not only be conciliated by but arbitrated before the
CCMA,
and are accordingly not justiciable by a High Court or a court of
equivalent status, section 24 would be inconsistent with section
169 of the
Constitution.
[31] Section 169, as quoted above in paragraph 3,
provides that the High Court “may decide any constitutional matter”
other than a matter that falls within the exclusive jurisdiction of the
Constitutional Court or a matter “assigned by an Act
of Parliament to
another court of a status similar to a High Court”. In this context,
“assigned” means taking
jurisdiction away from the High Court and
conferring it on another court of similar status. The Act does contemplate that
the arbitration
proceedings conducted in terms of section 24 before the CCMA
will be subject to review before the Labour
Court,
2
[7]
but a power of review is
not a power to determine a dispute. It is a power to correct irregularities in
a previous process. If
upon review the Labour Court does not agree with the
decision of the CCMA, it is not able to substitute its decision for the decision
of the CCMA unless there is some reviewable error. Section 24 of the Act
therefore does not provide for the Labour Court to determine
disputes based on
constitutional rights arising from a collective agreement. Whatever the nature
of the CCMA’s jurisdiction
might be, such jurisdiction cannot under
section169 of the Constitution oust the jurisdiction of a High Court to decide a
constitutional
matter, for the simple reason that, as already indicated, the
CCMA is not a “court of a status similar to a High Court”.
This
inevitably leads to the conclusion that section 24 of the Labour Relations Act
does not “assign to another court of a
status similar to a High
Court” a constitutional matter that the High Court would otherwise have
power to decide.
[32] As stated
above,
2
[8]
the applicants in this
case have alleged an infringement of their rights under sections 9 and 33 of the
Constitution. Their claim
is not based on contract. It is based on their
constitutional rights to administrative justice and equal treatment. They
allege
that the state acting in its capacity as employer did not act
procedurally fairly in the administration of Resolution 3, and in particular,
in
considering their applications for voluntary retrenchment. To decide this
matter it is not necessary for us to consider the merits
of their claim or the
extent to which the state acting in its capacity as employer is obliged to
comply with the dictates of section
33 or section 9. What is clear, however, is
that the applicants’ claim does not arise only from the provisions of
Resolution
3 itself. It arises from the special duties imposed upon the state
by the Constitution.
[33] The applicants raise a constitutional
matter. Section 24 does not oust the jurisdiction of the High Court to
determine that
dispute because the institution responsible for the resolution of
disputes in terms of section 24 is not a court of similar status
to the High
Court. The effect of these conclusions is not however that a person who has a
constitutional complaint arising out of
the interpretation or application of a
collective agreement may not take that matter to the CCMA. Nor does it mean
that the CCMA
should not consider the provisions of the Constitution in the
exercise of its powers. Indeed, like all organs of state it is obliged
to seek
to give effect to constitutional commitments. What we do conclude, however, is
that the legislature may not oust the jurisdiction
of the High Court to consider
constitutional matters unless it assigns that jurisdiction to a court of similar
status, even if at
the same time, it confers a similar, though not exclusive,
jurisdiction upon another tribunal or forum. The High Court therefore
erred in
concluding that the dispute in this matter concerned the interpretation or
application of a collective agreement as contemplated
by section
24.
[34] It is important to note that in this case, the applicants
expressly disavow any reliance on section 23(1) of the Constitution,
which
entrenches the right to fair labour practices. The preamble to the Labour
Relations Act makes it plain that the purpose of
the Act is to give statutory
effect to this right. The question therefore does not arise in this case
whether a dispute arising
out of the interpretation or application of a
collective agreement gives rise to a constitutional complaint in terms of
section 23(1).
That question raises difficult issues of constitutional
interpretation that we need not address now.
[35] Having concluded that
section 24 of the Act does not oust the jurisdiction of the High Court in
constitutional matters, and
that the applicants in this case raise a
constitutional matter, it follows that the High Court was not correct when it
concluded
that section 24 of the Labour Relations Act deprived it of
jurisdiction to determine the dispute. It is now necessary to consider
whether
the High Court has jurisdiction to determine the dispute. In particular, we
must determine whether Parliament has conferred
the jurisdiction to determine
this dispute upon the Labour Court, in such a manner that it either expressly or
by necessary implication
has excluded the jurisdiction of the High
Court.
[36] Section 157 of the Labour Relations Act provides as
follows:
“(1) Subject to the Constitution and section 173, and except where this
Act provides otherwise, the Labour Court has exclusive
jurisdiction in respect
of all matters that elsewhere in terms of this Act or in terms of any other law
are to be determined by the
Labour Court.
(2) The Labour Court has concurrent jurisdiction with the High Court in respect
of any alleged or threatened violation of any fundamental
right entrenched in
chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising
from –
(a) employment and labour relations;
(b) any dispute over the constitutionality of any executive or administrative
act or conduct, or any threatened executive or administrative
act or conduct, by
the State in its capacity as an employer; and
(c) the application of any law for the administration of which the Minister is
responsible.”
The proper
interpretation of sections 157(1) and (2) has been the subject of extensive
consideration in the High
Courts.
2
[9]
The starting point for
the enquiry must be section 157(1) which provides that the Labour Court shall
have exclusive jurisdiction
over all matters that “are to be
determined” by it in terms of the Labour Relations Act or other
legislation.
3
[0]
[37] To
the extent that exclusive jurisdiction over a matter is conferred upon the
Labour Court by section 157, or any other provision
of the Labour Relations Act
or other legislation, the jurisdiction of the High Court to adjudicate such
matter is ousted. There
can be no constitutional objection to such an ouster,
as section 169 of the Constitution makes it plain that a constitutional matter
over which the High Court has jurisdiction may be assigned by an Act of
Parliament to another court of a status similar to a High
Court. The Labour
Court is such a court. Section 151 of the Labour Relations Act
provides:
“(1) The Labour Court is hereby established as a court of law and
equity.
(2) The Labour Court is a superior court that has authority, inherent powers and
standing, in relation to matters under its jurisdiction,
equal to that which a
court of a provincial division of the Supreme Court has in relation to the
matters under its jurisdiction.
(3) The Labour Court is a court of
record.”
[38] Section 157(1) therefore
has the effect of depriving the High Court of jurisdiction in matters that the
Labour Court is required
to decide except where the Labour Relations Act
provides otherwise. Deciding which matters fall within the exclusive
jurisdiction
of the Labour Court requires an examination of the Labour Relations
Act to see which matters fall “to be determined”
by the Labour
Court. It is quite clear that the overall scheme of the Labour Relations Act
does not confer a general jurisdiction
on the Labour Court to deal with all
disputes arising from employment. As Nugent JA held in
Fedlife Assurance
Ltd
:
“... s 157(1) does not purport to confer exclusive jurisdiction upon the
Labour Court generally in relation to matters concerning
the relationship
between employer and
employees.”
3
[1]
[39] Instead
the Act provides for a careful and complex division of responsibilities between
bargaining councils, the CCMA and the
Labour Court and Labour Appeal Court. It
is also important to note that generally the Act requires that disputes be first
referred
to a conciliation or mediation process before being referred to an
agency for adjudication. Some disputes are resolved by conciliation,
followed
by arbitration that may be followed by review in the Labour Court and some
disputes are resolved by conciliation, followed
by adjudication in the Labour
Court. So, for example, disputes about organisational
rights,
3
[2]
the interpretation of
collective agreements
3
[3]
and many
disputes concerning unfair
dismissals
3
[4]
are to be referred to
conciliation generally by the CCMA and then to arbitration. On the other hand,
disputes about rights of freedom
of
association,
3
[5]
and certain
specified disputes concerning unfair
dismissal
3
[6]
must first be
conciliated and then referred to adjudication to the Labour
Court.
[40] As there is no general jurisdiction afforded to the Labour
Court in employment matters, the jurisdiction of the High Court is
not ousted by
section 157(1) simply because a dispute is one that falls within the overall
sphere of employment relations. The High
Court’s jurisdiction will only
be ousted in respect of matters that “are to be determined” by the
Labour Court
in terms of the Act. The
Concise Oxford English Dictionary
(1990 edition) defines “determine” so as to include “to
settle”, “to decide”, and “to fix”.
Adopting this
definition, a matter to be determined by the Labour Court as contemplated by
section 157(1) means a matter that in
terms of the Act is to be decided or
settled by the Labour Court. I am fortified in this conclusion by the use of
the word “determine”
in section 19(1)(a) of the Supreme Court Act,
59 of 1959 which provides that:
“A provincial or local division shall ... have power
–
(i) to hear and determine appeals from all inferior courts within its area of
jurisdiction;
(ii) to review the proceedings of all such courts;
(iii) in its discretion, and at the instance of an interested person, to enquire
into and determine any existing, future or contingent
right or obligation,
notwithstanding that such person cannot claim any relief consequential upon the
determination.”
3
[7]
[41] There
is no express provision of the Act affording the Labour Court jurisdiction to
determine disputes arising from an alleged
infringement of constitutional rights
by the state acting in its capacity as employer, other than section 157(2).
That section provides
that challenges based on constitutional rights arising
from the state’s conduct in its capacity as employer is a matter that
may
be determined by the Labour Court, concurrently with the High Court. Whatever
else its import, section 157(2) cannot be interpreted
as ousting the
jurisdiction of the High Court since it expressly provides for a concurrent
jurisdiction.
[42] It might be argued that section 158(1)(h) of the Act
is broad enough to confer such a power on the Labour Court. That provision
states:
“158 Powers of Labour Court
(1) The Labour Court may
—
(h) review any decision taken or any act performed by the State in its capacity
as employer on such grounds as are permissible in
law;”.
[43] Whatever the
precise ambit of section 158(1)(h), it does not expressly confer upon the Labour
Court constitutional jurisdiction
to determine disputes arising out of alleged
infringements of the Constitution by the state acting in its capacity as
employer.
Given the express conferral of jurisdiction in such matters by
section 157(2), it would be a strange reading of the Act to interpret
section
158(1)(h) read with section 157(1) as conferring on the Labour Court an
exclusive jurisdiction to determine a matter that
has already been expressly
conferred as a concurrent jurisdiction by section 157(2). Section 158(1)(h)
cannot therefore be read
as conferring a jurisdiction to determine
constitutional matters upon the Labour Court sufficient, when read with section
157(1),
to exclude the jurisdiction of the High Court.
[44] In the
absence therefore of a specific provision of the Act conferring a jurisdiction
to determine disputes arising out of constitutional
matters upon the Labour
Court that could be said to give rise to an exclusive jurisdiction in terms of
section 157(1) of the Act,
I must conclude that this dispute is not excluded
from the jurisdiction of the High Court.
[45] In the circumstances, the
High Court was incorrect to conclude that it did not have jurisdiction to
entertain this matter.
The application for leave to appeal should therefore be
granted and the appeal upheld. It would not be appropriate to accede to
the
suggestion on behalf of the applicants that this Court make an order affording
the applicants the substantive relief they sought
in the High Court. It is for
that Court to decide the matter, including the question of costs in that Court,
now that the constitutional
issue has been resolved. This Court should do no
more than refer the matter back to the High Court for determination on its
merits.
As the applicants have succeeded before this Court, they are entitled
to their costs here, which should include the costs of two
counsel.
Order
1. The application for leave to appeal
to this Court is granted.
2. The appeal is upheld and the order made by the High Court in the Eastern
Cape is set aside.
3. The matter is referred back to the High Court.
4. The respondents are to pay the costs of the application for leave to appeal
and the appeal jointly and severally, such costs to
include the costs consequent
upon the employment of two counsel.
Chaskalson CJ, Langa
DCJ, Ackermann J, Kriegler J, Madala J, Mokgoro J, Sachs J, Yacoob J, Du Plessis
AJ and Skweyiya AJ concur in
the judgment of O’Regan J.
For
applicants: A Beyleveld SC and P N Kroon, instructed by Smith, Tabata, Loon and
Connellan Inc., King William’s Town.
For respondents: P J De Bruyn
SC, B J Pienaar and T Norman, instructed by the State Attorney, King
William’s Town.
[1]
There were 48 applicants for
leave to appeal in this Court. When the proceedings were originally launched in
the Eastern Cape High
Court, there were 44 applicants (all but six of whom are
still applicants in this Court), 12 were then added during the proceedings
in
that Court and eight of the High Court applicants fell out of the proceedings
before application for leave to appeal was launched,
including the original
first applicant Mr Cassim Fredericks. The first applicant is now M
Fredericks.
[2]
Rule 18(6) provides:
“(a) If it appears to the court hearing the application made in terms of
subrule (2) that –
(i) the constitutional matter is one of substance on which a ruling by the Court
is desirable; and
(ii) the evidence in the proceedings is sufficient to enable the Court to deal
with and dispose of the matter without having to refer
the case back to the
court concerned for further evidence; and
(iii) there is a reasonable prospect that the Court will reverse or materially
alter the judgment if permission to bring the appeal
is given,
such court shall certify on the application that in its opinion, the
requirements of subparagraphs (i), (ii) and (iii) have been
satisfied or,
failing which, which of such requirements have been satisfied and which have not
been so
satisfied.”
[3]
R1086
published in
Government Gazette
17300 of 1 July 1996. Resolution 3 was
amended by Resolution 5 of 1996 published for notice in R1003 of 14 June 1996
Government Gazette
17262 and then extended to all employers and employees
falling within the scope of the
Labour Relations Act, 1995
by the Minister of
Education in R1438 published in
Government Gazette
17396 of 28 August
1996.
[4]
Para 14 (footnotes omitted in
the quotation).
[5]
Section 8(1)
provides that:
“The Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs
of state.”
[6]
See
Cape Metropolitan
Council v Metro Inspection Services (Western Cape) CC and Others
2001 (3)
SA 1013
(SCA).
[7]
Section 24(1).
[8]
Section 24(2).
[9]
Section 24(5)
read with
sections 136
and
137
of the
Labour Relations Act. See
also
section 127(2)(b)
which prohibits the accreditation of private accreditation agencies for
resolving disputes contemplated by
section 24(2)
to (5).
1
[0]
See
section 145
and
158
(1)(g) of the
Labour Relations Act and
the consideration of these sections in
Carephone (Pty) Ltd v Marcus NO and Others
1998 (10) BCLR 1326
(LAC);
1999 (3) SA 304
(LAC) and the recent reconsideration of that judgment in
Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others
(2001) 22 ILJ 1603
(LAC).
[1]
1
See also section 12(2) of
the Interpretation Act, 33 of 1957.
1
[2]
See
S v Mhlungu
[1995] ZACC 4
;
1995
(3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 65.
1
[3]
2001 (4) SA 285
(SCA).
1
[4]
See para 11, footnote 1, of
Coin Security
cited above n 13. See the judgment of the Labour Appeal
Court in
Bargaining Council for the Clothing Industry (Natal) v Confederation
of Employers of Southern Africa and others
(1999) 20 ILJ 1695 (LAC) at paras
14-15 where Ngcobo J held that the words “and enforceable” add
nothing to the meaning
of item 12(1)(a) and were added
ex abundante
cautela.
1
[5]
Item 13(1)
provides:
“For the purposes of this section, an agreement –
(a) includes a recognition agreement;
(b) excludes an agreement promulgated in terms of
section 48
of the
Labour
Relations Act;
(c
) means an agreement about terms and conditions of employment ore any other
matter of mutual interest entered into between one or
more registered trade
unions, on the one hand, and on the other hand
–
(i) one or more employers;
(ii) one or more registered employers’ organisations; or
(iii) one or more employers and one or more registered employers’
organisations.”
1
[6]
Item
21 provides:
“Disputes arising before commencement of this Act
(1) Any dispute contemplated in the labour relations laws that arose before the
commencement of this Act must be dealt with as if
those laws had not been
repealed.”
See also item 22 that provides
“Courts
(1) In any pending dispute in respect of which the industrial court or the
agricultural labour court had jurisdiction and in respect
of which proceedings
had not been instituted before the commencement of this Act, proceedings must be
instituted in the industrial
court or agricultural labour court (as the case may
be) and dealt with as if the labour relations laws had not been repealed. The
industrial court or the agricultural labour court may perform or exercise any of
the functions and power that it had in terms of
the labour relations laws when
it determines the dispute.
(2) Any dispute in respect of which proceedings were pending in the industrial
court or agricultural labour court must be proceeded
with as if the labour
relations laws had not been repealed.”
1
[7]
See
section 6 of the Education Labour Relations Act, 146 of
1993.
1
[8]
See R1086 of 1 July
1996 published in
Government Gazette
17300 of that date. Section
12(6)(a) provided as follows:
“The Council may transmit to the Minister any agreement contemplated in
this section, and the Minister may, if he deems it
expedient, and at the request
of the Council either at the time of such transmission or at any time thereafter
—
(i) by notice in the
Gazette
, and from time to time, declare that from a
date and for a period fixed by him in that notice, all the provisions of the
agreement,
or such provisions thereof as he may specify, shall be binding upon
employers and employees, other than those referred to in section
12(3), in any
area likewise specified;
(ii) in a notice under subparagraph (i) or by notice in the
Gazette
at
any time thereafter and from time to time declare that from a date and for a
period fixed by him in that notice, all the provisions
of the agreement, or such
provisions thereof as he may specify, shall be binding upon the employers and
employees or upon a specified
class or classes of employers and employees in an
area additional to the area referred to in subparagraph (i):
Provided that before publishing a notice under this paragraph, the Minister
shall cause to be published in the
Gazette
a provisional notice setting
forth the purport of the notice he proposes to publish under this paragraph and
calling upon all interested
persons who have any objections to the proposed
notice or the proposed provisions thereof, to lodge such objections with an
officer
and at an address stated in the notice, within a specified period but
not less than 30 days from the date of the publication of the
provisional
notice.”
1
[9]
The
Labour Relations Act, 66 of 1995
came into force on 11 November
1996.
2
[0]
Section 48
(at the
time of its repeal in 1995) provided as follows:
“(1) Whenever an industrial council transmits to the Minister any
agreement such as is referred to in
section 24
, entered into by some or all of
the parties to the council, the Minister may, if he deems it expedient to do so,
at the request of
the council made either at the time of such transmission or at
any time thereafter
—
(a) by notice in the
Gazette
declare that from a date and for a period
fixed by him in that notice, all the provisions of the agreement, as set forth
in that
notice, shall be binding upon the employers who and the employers’
organizations and trade unions which entered into that agreement
and upon the
employers and employees who are members of those organizations and unions;
(b) in a notice published under paragraph (a) or by notice in the
Gazette
at any time thereafter and from time to time declare that from a date and for a
period fixed by him in that notice all the provisions
of the agreement, or such
provisions thereof as he may specify, shall be binding upon all employers and
employees other than those
referred to in any relevant notice published under
paragraph (a), who are engaged or employed in the undertaking, industry, trade
or occupation to which the agreement relates, in the are or any specified
portion of the area in respect of which the council is
registered;
(c) in a notice published under paragraph (a) or (b) or by notice in the
Gazette
at any time thereafter and from time to time declare that from a
date and for a period fixed by him in that notice all the provisions
of the
agreement, or such provisions thereof as he may specify, shall be binding upon
all employers and employees or upon a specified
class or classes of employers
and employees engaged or employed in the undertaking, industry, trade or
occupation to which the agreement
relates, or in a specified section of portion
thereof, in an area additional to that in respect of which the council is
registered:
Provided that —
(i) before publishing a notice under this paragraph the Minister shall cause to
be published in the
Gazette
a provisional notice setting forth the
purport of the notice he proposes to publish under this paragraph and calling
upon all interested
persons who have any objections to the proposed notice or
the proposed provisions thereof, to lodge such objections with an officer
at an
address stated in the notice within a specified period of not less than 30 days
from the date of the publication of the provisional
notice;...”
2
[1]
See
section 9 of the Industrial Conciliation Act, 11 of 1924 and the brief
commentary thereon in Thompson and Benjamin
South African Labour Law
(Juta, Cape Town)
A1-23.
[2]
2
See
S v Prefabricated Housing Corporation (Pty) Ltd
1974 (1) SA 535
(A) at 540B.
2
[3]
Above n 13.
2
[4]
Ibid. The SCA based its
reasoning on
S v Prefabricated Housing Corporation (Pty) Ltd
(above n
22), and not on item 13(1)(b) referred to in the text. What is clear is that
agreements promulgated under section 48 of
the old legislation do not constitute
“collective agreements” for the purposes of the new Act.
2
[5]
Above para 3. See also para
12.
2
[6]
See chapter 7 of the Act
which establishes and regulates the CCMA.
2
[7]
See para 13 above.
2
[8]
Above para
11.
2
[9]
See, for example,
Kilpert v Buitendach
(1997) 18 ILJ 1296 (W);
Mondi Paper v PPWAWU
(1997) 18 ILJ 84 (D);
Mcosini v Mancotywa
(1998) 19 ILJ 1413 (Tk);
SAPPI Fine Papers v PPWAWU
(1998) 19 ILJ 246 (SE);
Coin Security Group
v SANUSO
(1998) 19 ILJ 43 (C);
Kritzinger v Newcastle Plaaslike
Oorgangsraad
(1999) 20 ILJ 2507 (N);
Fourways Mall v SACCAWU
1999(3)
SA 752 (W);
Claase v Transnet
1999 (3) SA 1012
(T);
CWU v Telkom
(1999) 20 ILJ 991 (T);
Jacot-Guillarmod v Provincial Government, Gauteng
1999 (3) SA 594
(T);
IMATU v North Pretorian Metropolitan Substructure
1999 (2) SA 228
(T);
Mgijima v Eastern Cape Appropriate Technology
Unit
2000 (2) SA 291
(Tk);
Minister of Correctional Services v Ngubo
2000 (2) SA 668
(N);
Louw v Acting Chairman of the Board of Directors,
Northwest Housing Corporation
(2000) 21 ILJ 482 (B);
Runeli v Minister of
Home Affairs
ng2057 (2000) 21 ILJ 910 (Tk);
TGWU v Kempton
City Syndicate
(2001) 22 ILJ 104 (W);
Eskom v
NUM (2001) 22 ILJ 618
(W);
Naptosa v Minister of Education, Western Cape
2001 (2) SA 112
(C);
Mbayeka and another v MEC for Welfare, Eastern Cape
[2001] 1 AllSA 567
(Tk). See also the Labour Appeal Court decision
Langeveldt v Vryburg TLC
(2001) 22 ILJ 1116 (LAC).
3
[0]
See the recent decision of
the Supreme Court of Appeal –
Fedlife Assurance Ltd v Wolfaardt
case 450/99 as yet unreported decision of the Supreme Court of Appeal dated 18
September 2001.
3
[1]
Ibid para 25.
3
[2]
See section 22 of the
Act.
[3]
3
See section 24 of the
Act.
3
[4]
See section 191 of the
Act.
3
[5]
See section 9 of the
Act.
3
[6]
See section 191(5)(b) of the
Act.
3
[7]
See also the use of the word
“determine” in section 46(9)(a) of the Labour Relations Act, 28 of
1956, the predecessor
to the legislation under consideration in this case.