About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2009
>>
[2009] ZACC 26
|

|

Gcaba v Minister for Safety and Security and Others (CCT64/08) [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) ; (2010) 31 ILJ 296 (CC) ; [2009] 12 BLLR 1145 (CC) (7 October 2009)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 64/08
[2009] ZACC 26
In matter between
VUYILE JACKSON
GCABA Applicant
versus
MINISTER FOR SAFETY AND
SECURITY First Respondent
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICE Second Respondent
PROVINCIAL
COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICE, EASTERN
CAPE Third Respondent
MORGAN G GOVENDER Fourth
Respondent
VAKALA MOYAKE Fifth Respondent
Heard on : 7 May 2009
Decided on : 7 October 2009
JUDGMENT
VAN DER WESTHUIZEN J:
Introduction
One of the purposes of law is to
regulate and guide relations in a society. One of the ways it does
so is by providing remedies
and facilitating access to courts and
other fora for the settlement of disputes. As supreme law, the
Constitution protects basic
rights. These include the rights to
fair labour practices and to just administrative action.
Legislation based on the Constitution
is supposed to concretise and
enhance the protection of these rights, amongst others, by
providing for the speedy resolution
of disputes in the workplace
and by regulating administrative conduct to ensure fairness.
Yet the legislature, courts,
legal representatives and academics often create complexity and
confusion rather than clarity and
guidance. In the case of fairly
new legislation based on a young Constitution this is perhaps
understandable. Sometimes a jurisprudence
needs to develop along
with the insight and wisdom emerging from a debate over some time.
The legislature may also have to intervene
in appropriate
circumstances, for example, when incremental development results in
uncertainty or an otherwise unsatisfactory
situation.
The decisions of this Court in
Fredericks
1
and
Chirwa
,
2
as well as preceding jurisprudence of the Supreme Court of Appeal
and other courts,
3
have resulted in differences of opinion in subsequent jurisprudence
on the proper interpretation and application of overlapping
constitutional, administrative and labour law provisions and
principles, especially with regard to disputes between public

sector employees and their employers.
4
This matter gives this Court, as the highest court in all
constitutional matters,
5
an opportunity to provide some clarity and guidance, based on a
proper interpretation of the relevant provisions of the
Constitution,
the Labour Relations Act (LRA)
6
and the Promotion of Administrative Justice Act (PAJA).
7
It is an application for leave to
appeal against a judgment of Erasmus J in the Eastern Cape High
Court in Grahamstown (High Court).
The main question is whether
the High Court was correct in holding that it did not have
jurisdiction to entertain the application
to review and set aside
the decision of the South African Police Service (SAPS) not to
appoint Mr Gcaba, the applicant, as station
commissioner in
Grahamstown and in consequently dismissing the application.
The determination of this
question will be informed by the answers to questions such as
whether the decision not to appoint the
applicant was
administrative action and thus subject to administrative review,
whether an applicant whose claim is based on a
labour matter may
approach a High Court or has to follow the channels provided for by
the LRA and whether this Court’s decisions
in
Fredericks
and
Chirwa
can be reconciled.
Factual background
During September 2003 the
applicant was appointed as station commissioner, Grahamstown. He
occupied this position until
the end of February 2006. When the
position was upgraded, the applicant applied, was shortlisted and
went through the interview
process. However, he was not appointed.
The fourth respondent, Mr Govender, got the position instead.
The applicant lodged a grievance
with the SAPS, but later abandoned the process and elected to refer
the dispute to the Safety
and Security Sectoral Bargaining Council
(Bargaining Council). After the failure of the representative of
the SAPS to attend
the pre-arbitration meeting, the applicant
withdrew the dispute from the Bargaining Council and approached the
High Court with
an application to review the decision of the second
and third respondents (the National and Provincial Commissioners of
the SAPS
respectively) not to appoint him as station commissioner.
Erasmus J held that the High
Court lacked jurisdiction to entertain the application as it
related to an employment matter. In
the result, he dismissed the
application. The High Court considered itself bound by this
Court’s decision in
Chirwa
,
as interpreted by the
full bench of the Bhisho High Court in
Nonzamo Cleaning Services
v Appie
.
8
In
Nonzamo
the Bhisho High Court held, that
to
the extent that
Chirwa
and
Fredericks
were mutually
irreconcilable,
Chirwa
should be seen to have overruled
Fredericks
.
Constitutional
and legislative framework
It is necessary to sketch the
legislative framework within which the questions raised in this
matter are to be determined.
The
right to fair labour practices is enshrined in section 23 of the
Constitution.
9
The LRA was promulgated pursuant thereto to provide particularity
and content to section 23.
The
right to just administrative action is entrenched in section 33 of
the Constitution.
10
It is specifically required in section 33(3) that national
legislation be enacted to give effect to this right. PAJA was

enacted to comply with this mandate.
The
LRA created procedures and institutions to deal with labour
disputes. The Labour Court is central in this regard. Section
157
of the LRA provides for the jurisdiction of the Labour Court 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 from 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.”
11
As to the Labour Appeal Court,
section 173 of the LRA states:
“
(1) Subject to the
Constitution and despite any other law, the Labour Appeal Court has
exclusive jurisdiction—
(a) to hear and determine all
appeals against the final judgments and the final orders of the
Labour Court; and
(b) to decide any questions of
law reserved in terms of section 158(4).
.
. . .
(4) A decision to which any
two judges of the Labour Appeal Court agree is the decision of the
Court.”
Section 191 of the LRA provides for the procedure regarding unfair
dismissals and unfair labour practices.
12
In
relation to the jurisdiction of High Courts, section 169 of the
Constitution states:
“
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.”
Issues
Two preliminary issues have to be
determined, namely whether a constitutional issue is raised and
whether it is in the interests
of justice for this Court to grant
leave to appeal.
This Court may decide only constitutional matters and issues
connected with decisions on constitutional matters.
13
The interplay between administrative and labour law principles
within the context of public sector employment is at the centre
of
this matter. It necessarily involves the interpretation of the LRA
and the PAJA, the origins of which are firmly rooted in
the
Constitution. Furthermore, this matter revolves around the
interpretation of previous decisions of this Court. A
constitutional
issue is therefore raised.
Is it in the interests of justice
to grant leave to appeal, especially in view of the possible
mootness of this matter? The position
of Grahamstown station
commissioner is now held by the fifth respondent, Mr Moyake. The
applicant has accepted a posting to
a different station; so too has
the fourth respondent, Mr Govender. The parties disagree in
their understanding of the
present factual state of the dispute.
However, they agree that the importance of the issues requires a
definitive pronouncement
by this Court. Although the resolution of
the dispute between the applicant and the SAPS may appear to be an
academic exercise,
the jurisprudential implications of the matter
dictate that it is in the interests of justice to hear it. It is
not necessary
to decide on the different views of the parties as to
the exact factual situation at present.
As to the merits, the crisp
issues for consideration by this Court are—
whether the failure to promote
and appoint the applicant was administrative action subject to
review; and
whether the High Court correctly
decided that it had no jurisdiction to hear the matter.
Schools of thought in existing
jurisprudence
This Court’s decisions in
Fredericks
14
and
Chirwa
,
15
which gave rise to different interpretations in subsequent
jurisprudence,
16
concerned litigation premised on the alleged infringement of the
right to just administrative action. At the heart of the disputes
were decisions by public sector employers, which negatively
affected employees and were therefore labour-related.
Fredericks
concerned the refusal by the Eastern Cape
Department of Education to approve applications for voluntary
retrenchment determined
in terms of a collective bargaining
agreement.
17
Chirwa
dealt with the dismissal by the Transnet Pension
Fund, a division of Transnet Limited, of an employee.
18
In both matters the parties approached the respective High Courts
to have the decisions reviewed and set aside. The High Court
in
Fredericks
held that on the proper construction of the LRA
it did not have jurisdiction to consider the matter. The High
Court in
Chirwa
assumed that it did have jurisdiction to
hear the matter, and on appeal the Supreme Court of Appeal upheld
the High Court’s
concurrent jurisdiction with the Labour Court to
entertain the applicant’s claim.
19
The question which arose for consideration by this Court in both
matters
was thus whether Parliament had conferred the
jurisdiction to determine the disputes upon the Labour Court in
such a manner that
it either expressly or by necessary implication
excluded the jurisdiction of the High Court.
20
In
Fredericks
the
applicants founded their claim upon the alleged infringement of
their right to equality and just administrative action, enshrined
in sections 9 and 33 of the Constitution respectively.
21
The High Court
held that the dispute concerned a collective
bargaining agreement, a matter governed by section 24 of the LRA
and in respect of
which the Labour Court had exclusive jurisdiction
under section 157(1) of the LRA.
22
As a result, the High Court held that it did not enjoy
jurisdiction to entertain the matter.
23
On appeal to this Court, the
applicants alleged that the state, in its capacity as employer, did
not act procedurally fairly in
its consideration of their voluntary
retrenchment applications.
24
The decision turned on the proper interpretation of section 157 of
the LRA
25
and section 169 of the Constitution.
26
O’Regan J, for a unanimous Court, held that
the High Court had jurisdiction to entertain the claim, which was
founded on a constitutional
right.
27
The Court held that the claim was based on the applicants’
“constitutional rights to administrative justice and equal
treatment”
and flowed “from the special duties imposed upon the
State by the Constitution”.
28
Where a claim is formulated as a violation of a constitutional
right the jurisdiction of the High Court will not be ousted.
By
virtue of section 169, the constitutional jurisdiction of the High
Court can only be ousted when a matter is assigned by
legislation
to a court of similar status to the High Court.
29
The Commission for Conciliation, Mediation and Arbitration (CCMA)
is not a court of similar status to the High Court; therefore,
the
review of a CCMA decision by the Labour Court is not a substitute
for considering a matter afresh.
30
The Court held further that there
was no general jurisdiction afforded to the Labour Court in
employment matters and that the
jurisdiction of the High Court was
not ousted by section 157(1) of the LRA simply because a dispute is
one that falls within
the overall sphere of employment relations.
The High Court’s jurisdiction would only be ousted in respect of
matters that
“are to be determined” by the Labour Court in
terms of the LRA. A matter to be determined by the Labour Court as
contemplated
by section 157(1) means a matter that in terms of the
LRA is to be decided or settled by the Labour Court.
31
Other than section 157(2), held
the Court, there was no express provision conferring exclusive
jurisdiction on the Labour Court
to determine disputes concerning
alleged infringements of constitutional rights by the state acting
in its capacity as employer.
32
On the contrary, that section affords concurrent jurisdiction to
Labour Courts and High Courts in the limited circumstances
prescribed therein.
33
The conclusion was that the High Court was incorrect in holding
that it lacked jurisdiction to entertain the matter.
34
I
n
Chirwa
dismissal for poor work performance was central. Ms
Chirwa started with the structures provided for in the LRA, and
after her
attempts had been frustrated, she approached the High
Court. She contended that her dismissal as an employee of an organ
of
state amounted to administrative action because it constituted
an exercise of public power, as contemplated in the Constitution
and section 1 of PAJA.
35
She therefore claimed that she had two causes of action available
to her, one under the LRA and the other flowing from the Bill
of
Rights and PAJA.
36
She maintained that the High Court had concurrent jurisdiction
with the Labour Court in respect of her claim.
37
In a
majority judgment Skweyiya J distinguished
Fredericks
from
Chirwa
on the basis that the applicants in
Fredericks
had
expressly disavowed any reliance on the right to fair labour
practices, entrenched in section 23(1) of the Constitution, or
any
other provisions of the LRA.
38
He stated:
“
Fredericks
is
distinguishable from the present case. Notably, the applicants in
Fredericks
expressly disavowed any reliance on section 23(1)
of the Constitution, which entrenches the right to a fair labour
practice. Nor
did the claimants in
Fredericks
rely on the
fair labour practice provisions of the LRA or any other provision of
the LRA. The court therefore did not consider,
but left open, the
question whether a dispute arising out of the interpretation or
application of a collective agreement can also
give rise to a
constitutional complaint as envisaged in section 157(2) of the
LRA.”
39
In
Fredericks
the claim,
therefore, was not based on the employment contract, but on the
applicants’ constitutional rights to administrative
justice and
equality which Skweyiya J found – reiterating the words of
O’Regan J – flow from the “special duties imposed
upon the
State by the Constitution”.
40
The applicants disavowed any reliance on their constitutional
labour rights and relied instead on their rights to equality and
just administrative action. Therefore,
Fredericks
was never
a labour case or a case where direct reliance was placed on the
LRA. According to Skweyiya J, the Court in
Fredericks
did not consider, but left open the question whether a dispute
arising out of the interpretation or application of a collective
agreement can also give rise to a constitutional complaint as
envisaged in section 157(2) of the LRA.
41
Skweyiya J then addressed the
question whether public-sector employment contracts are subject to
administrative law, on a jurisdictional
basis. Labour issues are
to be dealt with in the specialised fora and pursued through the
purpose-built mechanisms established
by the LRA.
42
The purpose of the LRA is to create a system under which all
labour disputes can be resolved.
43
This is also implied by the provisions of section 210 of the LRA,
44
as well as in the purposes of the CCMA, and the concomitant
specialist labour tribunals.
45
To this end, he viewed the purpose of section 157(2) of the LRA as
extending the jurisdiction of the Labour Court to employment
matters that implicate constitutional rights.
46
He stated, furthermore, that the High Court’s jurisdiction will
only be ousted when matters are , according to section 157(1),
to
be determined by the Labour Court.
47
This is implied by section 191 of the LRA,
48
which confers unfair dismissal jurisdiction on the Labour Court,
and not the High Court. Thus, if section 157 is interpreted
in the
light of section 191, the High Court’s jurisdiction is ousted by
section 157(1).
49
Therefore, the decision of the
applicants in
Fredericks
not to rely on the provisions of
the LRA removed their claim from the purview of labour law and the
exclusive jurisdiction of
the Labour Court and placed it within the
concurrent jurisdiction of the Labour Court and the High Court.
The same could not be said for Ms
Chirwa’s claim. Having characterised the claim as a labour
matter, Skweyiya J held that because
her claim was framed in terms
that sought to impugn a failure to properly apply sections of the
LRA, she had to follow the specialised
framework provided for in
the LRA. Ms Chirwa’s claim of unfair dismissal was one envisaged
by section 191 of the LRA,
50
which provided a procedure for its resolution and, by necessary
implication, fell within the exclusive jurisdiction of the Labour
Court. Ms Chirwa, therefore, should first have exhausted all
remedies and procedures provided in the LRA.
51
The High Court had no concurrent jurisdiction.
52
It was held further that if the
courts were to allow complainants more than one cause of action, a
dual system of law would develop:
one in the civil courts, and one
in the fora provided for under the LRA.
53
This would run contrary to the proposed aims of the LRA, one of
which is to create a coherent system for dispute resolution
in
respect of labour matters.
Skweyiya J did, however, state
that labour disputes that raise a constitutional issue are
justiciable in the High Court:
“
Keeping in mind the aim of
the LRA to be a one-stop shop dispute resolution structure in the
employment sphere, it is not difficult
to see that the concurrent
jurisdiction provided for in section 157(2) of the LRA is meant to
extend the jurisdiction of the Labour
Court to employment matters
that implicate constitutional rights. However, this cannot be seen
as derogating from the jurisdiction
of the High Court in
constitutional matters, assigned to it by section 169 of the
Constitution, unless it can be shown that a particular
matter falls
into the exclusive jurisdiction of the Labour Court.”
54
(Footnote omitted.)
In a separate judgment, also
supported by the majority of the Court, Ngcobo J adopted a
purposive interpretation of the LRA and
arrived at the same
conclusion. He emphasised that the manifest object of the LRA is
to subject all employees, irrespective
of whether the employer is
in the public or private sector, to its provisions, except those
who are expressly excluded from its
ambit.
55
Accordingly, when “an employee alleges non-compliance with
provisions of the LRA, the employee must seek the remedy in the
LRA”.
56
Ngcobo J held, therefore, that the dispute between Ms Chirwa and
Transnet fell within the exclusive jurisdiction of the Labour
Court
and that the jurisdiction of the High Court in respect of Ms
Chirwa’s claim was ousted.
57
He reconciled section 157(1) and
(2)
58
by having regard to the primary objects of the LRA itself.
59
The problem the legislature sought to address in enacting the LRA
was to overcome the perpetual tribulations caused by the

multiplicity of laws, as well as overlapping and competing
jurisdictions of the different courts.
60
This would entail that section 157(1) equips the Labour Court and
the Labour Appeal Court to deal exclusively with employment
matters.
61
The parallel effect of section 157(2) is to vest in the Labour
Court a limited constitutional jurisdiction in employment matters
that implicate constitutional rights.
62
According to Ngcobo J, the LRA
should be a litigant’s first port of call in employment
disputes.
63
The only way to reconcile the provisions of section 157(2) and
harmonise them with those of section 157(1) and the primary objects
of the LRA, is to give section 157(2) a narrow meaning. The
application of section 157(2) must be confined to those instances,
if any, where a party relies directly on the provisions of the Bill
of Rights.
64
He referred to the constitutional
principle explicitly endorsed in
SANDU v Minister of Defence
65
where the Court held that where legislation is enacted to give
effect to a constitutional right, a litigant may not bypass that
legislation and rely directly on the Constitution without
challenging that legislation as falling short of the constitutional
standard.
66
Ngcobo J concluded that—
“
[t]he employee cannot, as
the applicant seeks to do, avoid the dispute resolution mechanisms
provided for in the LRA by alleging
a violation of a constitutional
right in the Bill of Rights. It could not have been the intention
of the Legislature to allow
an employee to raise what is essentially
a labour dispute under the LRA as a constitutional issue under the
provisions of section
157(2). . . . What is, in essence, a labour
dispute as envisaged in the LRA should not be labelled a violation
of a constitutional
right in the Bill of Rights simply because the
issues raised could also support a conclusion that the conduct of
the employer amounts
to a violation of a right entrenched in the
Constitution.”
67
In a minority judgment Langa CJ concurred in the outcome reached by
the majority. However, he disagreed with the reasoning and
conclusion on the issue of jurisdiction,
68
especially the characterisation of Ms Chirwa’s claim as one
falling within the exclusive purview of the LRA.
69
According to the minority, it is “axiomatic that the substantive
merits of a claim cannot determine whether a court has jurisdiction
to hear it”.
70
Ms Chirwa founded her case on the basis of PAJA, and a court is
required to “assess its jurisdiction in the light of the

pleadings”.
71
To hold otherwise would mean that the correctness of an assertion
determines jurisdiction, a proposition that this Court rejected
in
Fraser v ABSA Bank
.
72
In concluding that the High Court had jurisdiction to entertain Ms
Chirwa’s claim, Langa CJ stated that a claim “must be
approached as it is pleaded”
73
and an untenable situation would arise where the jurisdiction of a
High Court is determined by the answer to a question that
the court
could only consider if it had jurisdiction.
74
In the wake of
Fredericks
and
Chirwa
divergent schools of jurisprudence have developed on
the proper interpretation of section 157(1) and (2) of the LRA,
within the
context of the rest of the LRA and the Constitution.
Each decision was predicated upon the specific factual matrix of
that case;
however, these decisions have led to a jurisprudential
divide on the jurisdiction of the High Court to entertain
employment-related
disputes.
A number of cases have endorsed
the view that the Labour Court and High Court have concurrent
jurisdiction to adjudicate upon
labour-related disputes.
75
An opposite view has been espoused though, namely that the Labour
Court has exclusive jurisdiction over employment matters where
the
LRA provides expressly for this exclusivity, even going so far as
to exclude the jurisdiction of the High Court where the
dispute may
implicate the infringement of constitutional rights.
76
Furthermore, differing opinions
have been expressed as to whether
Chirwa
“overruled”
Fredericks
.
77
In
Makambi
an attempt was made to formulate the precise
circumstances under which each precedent is to be followed.
78
In
Mkumatela
the manner in which the complainants’ claim
was formulated was regarded as dispositive of the question of
jurisdiction.
79
In
POPCRU
a more robust approach was adopted and
constitutional rights were reasoned to be mutually reinforcing and
thus complementary.
80
The applicant’s case
The applicant submits that the
narrow factual basis upon which Skweyiya J distinguished
Fredericks
from
Chirwa
is dispositive of the jurisdictional dispute in
this matter.
Therefore, although reference was
made to the LRA, the applicant contends that his claim was, from
inception, couched largely
in administrative law terms. As a
result, it was clear that he was relying on the right to just
administrative action as envisaged
by PAJA, and any reliance on the
right to fair labour practices under the LRA constituted a
subsidiary argument.
In bolstering his argument that
the right to just administrative action has been infringed, the
applicant contends that the impugned
decision was procedurally
unfair to the extent that he was not given an opportunity to state
his case for appointment. He was
not furnished with reasons for
the adverse decision, and the decision was not rationally connected
to the purpose of the empowering
provision or to the information
before the administrator.
The applicant argues,
furthermore, that the High Court erred in—
(a) holding that it was bound by
Chirwa
, particularly in holding
that it did not have
jurisdiction to adjudicate on the matter as
Chirwa
had
overruled
Fredericks
;
(b) not following
Fredericks
;
(c) holding that the application did
not contain a separate and self-standing substantive claim based on
the applicant’s right
to fair administrative action; and
(d) failing to distinguish his
application from
Chirwa
in that the dispute in this
application is not to be regarded in law as an employment matter,
but as a dispute about an appointment
to a particular post in the
public service which necessarily involves the public at large.
Accordingly, the applicant
contends that the decision not to appoint him was subject to
administrative review and should be set
aside.
The respondents’ case
The respondents submit that the
application for leave to appeal should be dismissed, for a lack of
prospects of success. They
draw on the following similarities
between the facts in the present application with those in
Chirwa
:
(a) The applicant, after going through the internal SAPS procedures,
referred his dispute to the Bargaining Council. Likewise,
Ms Chirwa
referred her dispute to the CCMA.
(b) The applicant later elected not to pursue the processes before
the Bargaining Council. Similarly, Ms Chirwa abandoned her
case
before the CCMA.
(c) The applicant, like Ms Chirwa, then instituted proceedings in
the High Court.
The respondents argue that the
applicant’s claim is a labour matter which, by law, must be
adjudicated through the finely-tuned
mechanisms provided for in the
LRA. The applicant’s initial conduct and his founding affidavit
in the High Court placed specific
reliance on his right to fair
labour practices under the LRA. On the basis of the principle
confirmed in
Chirwa
, the respondents reiterated that the
applicant was not entitled to pursue additional causes of action or
remedies under PAJA.
Whilst the respondents accept
that the power to appoint was one exercised by an organ of state in
terms of the enabling provisions
of statute and regulations, they
contend that such power is private in nature and vests in the
employer. The respondents submit
that a decision by an employer
whether or not to appoint an applicant for a post is no different
from a decision to dismiss,
or to change shift arrangements.
81
Finally, the respondents contend
that, as was held by the majority in
Chirwa
, it could not
have been the intention of the legislature to allow a litigant to
engage in “forum shopping”, particularly
in the light of the
objects of the LRA, and on a proper reading of section 157(2) of
the LRA.
General principles and policy
considerations
In order to evaluate and
understand the divergent but arguable approaches to the
interpretation of sections 23 and 33 of the Constitution,
section
157 of the LRA and the provisions related thereto, it is useful to
try to identify a few general principles and policy
considerations
which informed and have been informed by the interpretations put
forward in
Fedlife
,
Fredericks
,
Chirwa
and
other cases.
82
First, it is undoubtedly correct
that the same conduct may threaten or violate different
constitutional rights and give rise to
different causes of action
in law, often even to be pursued in different courts or fora. It
speaks for itself that, for example,
aggressive conduct of a sexual
nature in the workplace could constitute a criminal offence,
violate equality legislation, breach
a contract, give rise to the
actio iniuriarum
in the law of delict and amount to an
unfair labour practice. Areas of law are labelled or named for
purposes of systematic
understanding and not necessarily on the
basis of fundamental reasons for a separation. Therefore, rigid
compartmentalisation
should be avoided.
83
It is, furthermore, generally
accepted that human rights are intrinsically interdependent,
indivisible and inseparable. The constitutional
and legal order is
one coherent system for the protection of rights and the resolution
of disputes.
A related principle is that
legislation must not be interpreted to exclude or unduly limit
remedies for the enforcement of constitutional
rights.
However, another principle or
policy consideration is that the Constitution recognises the need
for specificity and specialisation
in a modern and complex society
under the rule of law. Therefore, a wide range of rights and the
respective areas of law in
which they apply are explicitly
recognised in the Constitution. Different kinds of relationships
between citizens and the state
and citizens amongst each other are
dealt with in different provisions. The legislature is sometimes
specifically mandated to
create detailed legislation for a
particular area, like equality,
84
just administrative action (PAJA) and labour relations (LRA). Once
a set of carefully-crafted rules and structures has been
created
for the effective and speedy resolution of disputes and protection
of rights in a particular area of law, it is preferable
to use that
particular system. This was emphasised in
Chirwa
by both
Skweyiya J and Ngcobo J.
85
If litigants are at liberty to relegate the finely-tuned dispute
resolution structures created by the LRA, a dual system of
law
could fester in cases of dismissal of employees.
86
Following from the previous
points, forum shopping by litigants is not desirable.
87
Once a litigant has chosen a particular cause of action and system
of remedies (for example, the structures provided for by
the LRA)
she or he should not be allowed to abandon that cause as soon as a
negative decision or event is encountered. One may
especially not
want litigants to “relegate” the LRA dispensation because they
do not “trust” its structures to do justice
as much as the High
Court could be trusted. After all, the LRA structures were created
for the very purpose of dealing with
labour matters, as stated in
the relevant parts of the two majority judgments in
Chirwa
,
referred to above.
Lastly, in view of the perceived
tensions between
Chirwa
and
Fredericks
, it may be
useful to keep the essential meaning of and the reasons behind the
doctrine of precedent in mind. Often expressed
in the Latin maxim
stare decisis et non quieta movere
(to stand by decisions
and not to disturb settled matters), it means that in the interests
of certainty, equality before the
law and the satisfaction of
legitimate expectations, a court is bound by the previous decisions
of a higher court and by its
own previous decisions in similar
matters.
88
In
Robin Consolidated Industries Ltd v Commissioner for Inland
Revenue
,
89
the Supreme Court of Appeal held that—
“
for good reason this Court
is reluctant to depart from its own decisions . . . once the meaning
of the words of a section in an
Act of Parliament have been
authoritatively determined by this Court, that meaning must be given
to them, even by this Court, unless
it is clear to it that it has
erred. . . . Particularly is it important to observe
stare
decisis
when a decision has been acted on for a number of years
in such a manner that rights have grown up under it”.
90
The doctrine of precedent was affirmed by this Court in the
Certification of the Amended Text of the Constitution
91
where it stated:
“
The sound jurisprudential
basis for the policy that a court should adhere to its previous
decisions unless they are shown to be
clearly wrong is no less valid
here than is generally the case.”
92
In
Van der Walt v Metcash
93
the merit of legal certainty and the like treatment of similarly
situated litigants was also emphasised.
94
Furthermore, in
Daniels v Campbell
,
95
Moseneke J, in a minority judgment, reiterating the dicta in
Van
der Walt
, reasoned that the doctrine of precedent, an incident
of the rule of law, advances justice by ensuring certainty of law,
equality,
equal treatment and fairness before the law. He stated
further that to that end, the doctrine imposes a general obligation
on
a court to follow legal rulings in previous decisions.
96
Moseneke J acknowledged the recognised exceptions to the
stare
decisis
principle, namely “where the court is satisfied that
its previous decision was wrong or where the point was not argued
or where
the issue is in some legitimate manner distinguishable”.
97
Therefore, precedents must be
respected in order to ensure legal certainty and equality before
the law. This is essential for
the rule of law. Law cannot “rule”
unless it is reasonably predictable. A highest court of appeal –
and this Court in
particular – has to be especially cautious as
far as adherence to or deviation from its own previous decisions is
concerned.
It is the upper guardian of the letter, spirit and
values of the Constitution. The Constitution is the supreme law
and has
had a major impact on the entire South African legal order
– as it was intended to do. But it is young; so is the
legislation
following from it. As a jurisprudence develops,
understanding may increase and interpretations may change. At the
same time
though, a single source of consistent, authoritative and
binding decisions is essential for the development of a stable
constitutional
jurisprudence and for the effective protection of
fundamental rights. This Court must not easily and without
coherent and compelling
reason deviate from its own previous
decisions, or be seen to have done so. One exceptional instance
where this principle may
be invoked is when this Court’s earlier
decisions have given rise to controversy or uncertainty, leading to
conflicting decisions
in the lower courts.
Was the
failure to promote and appoint the applicant administrative action
subject to review?
Before addressing the issue of
jurisdiction, and in order to do so, the question must be answered
whether the conduct complained
of by Mr Gcaba was administrative
action.
Generally, employment and labour
relationship issues do not amount to administrative action within
the meaning of PAJA. This
is recognised by the Constitution.
Section 23 regulates the employment relationship between employer
and employee and guarantees
the right to fair labour practices.
98
The ordinary thrust of section 33 is to deal with the relationship
between the state as bureaucracy and citizens and guarantees
the
right to lawful, reasonable and procedurally fair administrative
action.
99
Section 33 does not regulate the relationship between the state as
employer and its workers. 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.
In this regard the reasoning of
Murphy AJ in
SAPU
100
is persuasive. The distinction drawn in that decision in relation
to tender contracting processes and employment seems correct.
For
purposes of constitutional interpretation, there are material
differences between tender processes and employment. One
is that
the Constitution regulates the employment relationship expressly in
section 23, which it does not do for procurement
(although section
217(1) of the Constitution
101
does provide that procurement must be fair, equitable, transparent,
competitive and cost-effective). Another is that the employment
relationship is different from the contractual relationships which
underpin procurement. The court concluded that the employment
decision at issue in
SAPU
was not administrative action.
102
This does not mean that employees have no protection. Employment
is not a bargain of equals, but a relationship of demand.
Since
the 1980s in South Africa, the legislature has realised that
leaving the regulation of employment purely within the realm
of
contract law could foster injustice; therefore the relationship is
regulated carefully through the LRA. Section 23 is an
express
constitutional recognition of the special status of employment
relationships and the need for legal regulation outside
of the law
of contract.
In
Chirwa
Ngcobo J found
that the decision to dismiss Ms Chirwa did not amount to
administrative action.
103
He held that whether an employer is regarded as “public” or
“private” cannot determine whether its conduct is
administrative
action or an unfair labour practice.
104
Similarly, the failure to promote and appoint Mr Gcaba appears to
be a quintessential labour-related issue, based on the right
to
fair labour practices, almost as clearly as an unfair dismissal.
Its impact is felt mainly by Mr Gcaba and has little or
no direct
consequence for any other citizens.
This view is consistent with the
judgment of Skweyiya J in
Chirwa
, who did not decide this
issue, but indicated a leaning in this direction.
105
It furthermore does not contradict the unanimous judgment of this
Court in
Fredericks
, which left the issue open.
106
There was no dispute about whether the decision at the centre of
the dispute was administrative action.
Accordingly, the failure to
promote and appoint the applicant was not administrative action.
107
If his case proceeded in the High Court, he would have been
destined to fail for not making out the case with which he
approached
this Court, namely an application to review what he
regarded as administrative action.
108
Jurisdiction under section 157(1)
and (2)
The consequence of the finding
that the conduct behind employment grievances like those of Ms
Chirwa and the applicant is not
administrative action, will
substantially reduce the problems associated with parallel systems
of law, duplicate jurisdiction
and forum shopping. As found in
Chirwa
, the Labour Court and other LRA structures have been
created as a special mechanism to adjudicate labour disputes such
as alleged
unfair dismissals grounded in the LRA and not, for
example, applications for administrative review. The High Court
adjudicates
the alleged violations of constitutional rights,
administrative review applications, and of course all other
matters. This corresponds
with a proper interpretation of section
157(1) and (2).
109
Section 157(1) confirms that the
Labour Court has exclusive jurisdiction over any matter that the
LRA prescribes should be determined
by it. That includes, amongst
other things, reviews of the decisions of the CCMA under section
145.
110
Section 157(1) should, therefore, be given expansive content to
protect the special status of the Labour Court, and section
157(2)
should not be read to permit the High Court to have jurisdiction
over these matters as well.
Section 157(2) confirms that the
Labour Court has concurrent jurisdiction with the High Court in
relation to alleged or threatened
violations of fundamental rights
entrenched in chapter 2 of the Constitution and arising from
employment and labour relations,
any dispute over the
constitutionality of any executive or administrative act or conduct
by the state in its capacity as employer
and the application of any
law for the administration of which the minister is responsible.
111
The purpose of this provision
is to extend the jurisdiction
of the Labour Court to disputes concerning the alleged violation of
any right entrenched in the
Bill of Rights which arise from
employment and labour relations, rather than to restrict or extend
the jurisdiction of the High
Court. In doing so, section 157(2)
has brought employment and labour relations disputes that arise
from the violation of any
right in the Bill of Rights within the
reach of the Labour Court. This power of the Labour Court is
essential to its role as
a specialist court that is charged with
the responsibility to develop a coherent and evolving employment
and labour relations
jurisprudence. Section 157(2) enhances the
ability of the Labour Court to perform such a role.
112
Therefore, section 157(2) should
not be understood to extend the jurisdiction of the High Court to
determine issues which (as
contemplated by section 157(1)) have
been expressly conferred upon the Labour Court by the LRA. Rather,
it should be interpreted
to mean that the Labour Court will be able
to determine constitutional issues which arise before it, in the
specific jurisdictional
areas which have been created for it by the
LRA, and which are covered by section 157(2)(a), (b) and (c).
Furthermore, the LRA does not
intend to destroy causes of action or remedies and section 157
should not be interpreted to do so.
Where a remedy lies in the
High Court, section 157(2) cannot be read to mean that it no longer
lies there and should not be
read to mean as much. Where the
judgment of Ngcobo J in
Chirwa
speaks of a court for labour
and employment disputes, it refers to labour- and
employment-related disputes for which the LRA creates
specific
remedies. It does not mean that all other remedies which might lie
in other courts like the High Court and Equality
Court, can no
longer be adjudicated by those courts. If only the Labour Court
could deal with disputes arising out of all employment
relations,
remedies would be wiped out, because the Labour Court (being a
creature of statute with only selected remedies and
powers) does
not have the power to deal with the common law or other statutory
remedies.
The specific term “jurisdiction”,
which has resulted in some controversy, has been defined as the
“power or competence of
a Court to hear and determine an issue
between parties”.
113
This Court regularly has to decide whether it has jurisdiction
over a matter, because it may decide only constitutional matters
and issues connected with decisions on constitutional matters.
114
If a litigant raises a constitutional issue, this Court has
jurisdiction, even though the issue may eventually be decided

against the litigant.
115
Jurisdiction is determined on the
basis of the pleadings, as Langa CJ held in
Chirwa
,
116
and not the substantive merits of the case. If Mr Gcaba’s case
were heard by the High Court, he would have failed for not
being
able to make out a case for the relief he sought, namely review of
an administrative decision. In the event of the Court’s
jurisdiction being challenged at the outset (
in limine
), the
applicant’s pleadings are the determining factor. They contain
the legal basis of the claim under which the applicant
has chosen
to invoke the court’s competence. While the pleadings –
including in motion proceedings, not only the formal
terminology of
the notice of motion, but also the contents of the supporting
affidavits – must be interpreted to establish
what the legal
basis of the applicant’s claim is, it is not for the court to say
that the facts asserted by the applicant would
also sustain another
claim, cognisable only in another court. If however the pleadings,
properly interpreted, establish that
the applicant is asserting a
claim under the LRA, one that is to be determined exclusively by
the Labour Court, the High Court
would lack jurisdiction. An
applicant like Mr Gcaba, who is unable to plead facts that sustain
a cause of administrative action
that is cognisable by the High
Court, should thus approach the Labour Court.
Conclusion
In view of the above, the
application for leave to appeal must succeed, but the appeal must
fail. The order of the High Court
was correct. The applicant’s
complaint was essentially rooted in the LRA, as it was based on
conduct of an employer towards
an employee which may have violated
the right to fair labour practices. It was not based on
administrative action. His complaint
should have been adjudicated
by the Labour Court.
As stated earlier, this Court’s
decision in
Chirwa
has been interpreted to have “overruled”
its previous decision in
Fredericks
, but also as not to have
done so. This term was not used in
Chirwa
, however. The
distinction between the two cases was pointed out, as indicated
earlier. In this judgment the relevant factual
and procedural
similarities and differences between
Fredericks
,
Chirwa
and
Gcaba
are highlighted. To the extent that this judgment
may be interpreted to differ from
Fredericks
or
Chirwa
,
it is the most recent authority.
No costs should be ordered
against the unsuccessful applicant, because he approached this
Court with a matter of considerable
constitutional import in order
to vindicate a fundamental right.
Order
The following is ordered:
1. The application for leave to appeal is granted.
2. The appeal is dismissed.
3. There is no order as to costs in this Court.
Moseneke
DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J,
Skweyiya J and Yacoob J concur in the judgment of Van
der
Westhuizen J.
For the Applicant:
For the Respondents:
Advocate M Lowe SC and Advocate M Osborne instructed by Wheeldon
Rushmere & Cole.
Advocate P Kennedy SC and Advocate B Makola instructed by Bowman
Gifillan.
1
Fredericks and Others v MEC for Education and Training, Eastern
Cape and Others
[2001] ZACC 6
;
2002 (2) BCLR 113
(CC);
2002 (2)
SA 693
(CC).
2
Chirwa v Transnet Limited and Others
[2007] ZACC 23
;
2008 (3)
BCLR 251
(CC);
2008 (4) SA 367
(CC).
3
Fedlife Assurance Ltd v Wolfaardt
2002 (1) SA 49
(SCA);
Mbayeka and Another v MEC for Welfare, Eastern Cape
2001 (4)
BCLR 374
(Tk);
Mgijima v Eastern Cape Appropriate Technology Unit
and Another
2000 (2) SA 291
(Tk); and
Mcosini v Mancotywa and
Another
(1998) 19
ILJ
1413 (Tk).
4
See
Kriel v Legal Aid Board and Others
[2009] ZASCA 76
, Case
No 138/08, 1 June 2009, unreported;
Makhanya v
University of Zululand
[2009] ZASCA 69
, Case No 218/08,
29 May 2009, unreported;
Makambi v MEC for Education,
Eastern Cape
[2008] ZASCA 61
;
2008 (5) SA 449
(SCA);
Old Mutual Life Assurance
Co SA Ltd v Gumbi
2007 (5) SA 552
(SCA);
Boxer Superstores
Mthatha and Another v Mbenya
2007 (5) SA 450
(SCA);
Transnet
Ltd and Others v Chirwa
2007 (2) SA 198
(SCA);
United
National Public Servants Association of SA v Digomo NO and Others
[2005] 12 BLLR 1169
(SCA); (2005) 26
ILJ
1957 (SCA);
Mohlaka
v Minister of Finance and Others
[2009] 4 BLLR 348
(LC);
Mogothle v Premier of the North West Province and Another
[2009] 4 BLLR 331
(LC);
Tsika v Buffalo City Municipality
[2009] 3 BLLR 272
(E);
2009 (2) SA 628
(E);
De Villiers v
Minister of Education, Western Cape, and Another
2009 (2) SA 619
(C);
Nonzamo Cleaning Services Cooperative v Appie and Others
[2008] 9 BLLR 901
(Ck);
2009 (3) SA 276
(Ck);
MEC, Department of
Education, Eastern Cape Province and Another
v Bodlani in re
Bodlani v MEC, Department of Education, Eastern Cape Province and
Another
(2008) 29
ILJ
2160 (Tk);
Mbashe Local
Municipality and Another v Nyubuse
(2008) 29
ILJ
2147
(E);
Kotze v National Commissioner, SA Police Service and Another
(2008) 29
ILJ
1869 (T);
Engineering Council of SA and
Another v City of Tshwane Metropolitan Municipality and Another
(2008) 29
ILJ
899 (T);
Nakin v MEC, Department of
Education, Eastern Cape, and Another
2008 (6) SA 320
(Ck);
Mortimer v Municipality of Stellenbosch and Another
[2008]
ZAWCHC 306
, Case No 18243/2003, 26-7 November 2008,
unreported;
Mkumatela v Nelson Mandela Metropolitan Municipality
and Another
[2008] ZAECHC 4
, Case No 2314/06, 28 January 2008,
unreported;
Kiva v Minister of Correctional Services and Another
[2007] 1 BLLR 86
(E); (2007) 28
ILJ
597 (E);
Nxele v Chief
Deputy Commissioner, Corporate Services, Department of Correctional
Services and Others
[2006] 10 BLLR 960
(LC);
Nell v Minister
of Justice and Constitutional Development and Another
[2006] 7
BLLR 716
(T);
Jones and Another v Telkom SA Ltd and Others
[2006] 5 BLLR 513
(T); (2006) 27
ILJ
911 (T);
POPCRU and
Others v Minister of Correctional Services and Others
[2006] 4
BLLR 385
(E);
Hlope and Others v Minister of Safety and Security
and Others
[2006] 3 BLLR 297
(LC); (2006) 27
ILJ
1003
(LC);
SAPU and Another v National Commissioner of the South
African Police Service and Another
[2006] 1 BLLR 42
(LC); (2005)
26
ILJ
2403 (LC); and
Public Servants Association on
behalf of Haschke v MEC for Agriculture and Others
(2004) 25
ILJ
1750 (LC).
5
Section 167(3)(a) of the Constitution.
6
66 of 1995.
7
3 of 2000.
8
Above n 4.
9
Section 23(1) states:
“
Everyone has the right to fair labour practices.”
10
Section 33 states:
“
(1) Everyone has the right to administrative action
that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected
by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect
to these rights . . . .”
11
The rest of section 157 states:
“
(3) Any reference to the court in the Arbitration
Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to
the Labour
Court when an arbitration is conducted under that Act in
respect of any dispute that may be referred to arbitration in terms
of
this Act.
(4) (a) The Labour Court may refuse to determine any
dispute, other than   an appeal or review before the Court, if
the Court
is not satisfied that an attempt has been made to
resolve the dispute through   conciliation.
(b) A certificate issued by a commissioner or a council
stating that a dispute
remains unresolved is sufficient proof
that an attempt has been made to resolve that dispute through
conciliation.
(5) Except as provided in section 158(2), the Labour
Court does not have jurisdiction to adjudicate an unresolved dispute
if this
Act requires the dispute to be resolved through
arbitration.”
12
The procedures delineated in section 191 may be summarised as
follows:
1. Disputes about unfair dismissals and unfair labour practices may
be referred by a dismissed employee, in writing, to a relevant
council or to the Commission for Conciliation, Mediation and
Arbitration (CCMA). Such referral must be made within 30 days of
the date of dismissal (or within 30 days of the date on which the
employer makes a final decision to dismiss). The referral for
an
alleged unfair labour practice must be made within 90 days of the
date of the conduct which allegedly constitutes the unfair
labour
practice (or within 90 days of the date on which the employee became
aware of the act or occurrence). The relevant council
or the CCMA
may permit an employee, at any time, on good cause shown to refer
the dispute after the relevant time period has expired.
The
employee must satisfy the council or the CCMA that a copy of the
referral has been served on the employer. The council or
the CCMA
must attempt to resolve the dispute through conciliation.
2. If the dispute remains unresolved after 30 days from
the date the council or the CCMA received the referral or it is
certified
that the dispute remains unresolved, the council or the
CCMA must arbitrate the dispute at the request of the employee if
(i) the
reason for the dismissal is related to the employee’s
conduct or capacity; (ii) the employer made continued employment
intolerable;
(iii) the employee was afforded substantially less
favourable conditions or circumstances at work after a transfer in
terms of
section 197 or 197A; (iv) the employee alleges that the
contract of employment was terminated for a reason contemplated in
section
187; (v) the employee does not know the reason for
dismissal; or (vi) the dispute concerns an unfair labour practice.
3. The employee may refer the dispute to the Labour
Court for adjudication (within 90 days after the dispute is
certified as unresolved)
if the employee alleged that the reason for
dismissal was (i) automatically unfair; (ii) based on the employer’s
operational
requirements; (iii) the employee’s participation in a
strike that does not comply with the LRA; or (iv) because the
employee
refused to join, was refused membership of or was expelled
from a trade union party to a closed shop agreement.
4. The relevant council or the CCMA must commence the
arbitration immediately after the dispute has been certified as
unresolved
if the dispute concerns the dismissal of an employee for
any reason relating to probation or any unfair labour practice
relating
to probation.
5. The director of the CCMA must refer the dispute to
the Labour Court if the director decides, on application by any
party to the
dispute, that the referral is appropriate, after
considering (i) the reason for dismissal; (ii) whether there are
questions of
law raised by the dispute; (iii) the complexity of the
dispute; (iv) whether there are conflicting arbitration awards that
need
to be resolved; and (v) the public interest. When considering
whether the dispute should be referred to the Labour Court, the

director must allow the parties and the relevant commissioner an
opportunity to make representations. The director must notify
the
parties of the decision which is final and binding. The director’s
decision may only be taken on review after the dispute
has been
arbitrated or adjudicated in accordance with the decision to refer
the matter to the Labour Court.
6. If an employee is dismissed by reason of the
employer’s operational requirements following a consultation
procedure in terms
of section 189 that applied to that employee
only, the employee may elect to refer the dispute either to
arbitration or to the
Labour Court.
7. An employee may refer a dispute concerning an
alleged unfair labour practice to the Labour Court for adjudication
if the dispute
involves the alleged contravention by the employer of
section 3
of the
Protected Disclosures Act 26 of 2000
.
13
Section 167(3)(b) of the Constitution.
14
Above n 1.
15
Above n 2.
16
See the cases cited above n 4.
17
Above n 1 at para 1.
18
Above n 2 at para 2.
19
Transnet Ltd and Others v Chirwa
above n 4 at paras 6-10.
20
Fredericks
above n 1 at para 35;
Chirwa
above n 2 at
para 20.
21
Fredericks and Others v MEC Responsible for Education and
Training in the Eastern Cape Province
[2001] 11 BLLR 1269
(Ck)
at 1277G-H.
22
Id at 1277F and 1281J-1282B.
23
Id at 1281J-1282B.
24
Above n 1 at para 32.
25
See above.
26
See above.
27
Above n 1 at para 44.
28
Id at para 32.
29
Id at para 37.
30
Id at para 31.
31
Id at para 40.
32
Id at para 41.
33
Id.
34
Id at para 45.
35
Section 1 of PAJA states:
“‘
administrative action’ means any decision
taken, or any failure to take a decision, by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or
a provincial constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation”.
36
Above n 2 at para 19.
37
Id.
38
Id at para 58.
39
Id.
40
Id at para 57.
41
Id at para 58.
42
Id at para 41.
43
Id at para 47.
44
Section 210 states:
“
If any conflict, relating to the matters dealt with
in this Act, arises between this Act and the provisions of any other
law save
the Constitution or any Act expressly amending this Act,
the provisions of this Act will prevail.”
45
Above n 2 at paras 50-1.
46
Id at para 54.
47
Id at para 59.
48
See n 12 above.
49
Above n 2 at para 63.
50
See n 12 above.
51
Above n 2 at paras 67-8.
52
Id at para 63.
53
Id at para 65.
54
Id at para 54.
55
Id at para 102.
56
Id at para 124.
57
Id at para 151.
58
Id at para 91.
59
Id at para 97.
60
Id at paras 99-104.
61
Id at para 113.
62
Id at para 120.
63
Id at paras 101-2.
64
Id at para 123.
65
SANDU v Minister of Defence and Others
[2007] ZACC 10; 2007
(8) BCLR 863 (CC); 2007 (5) SA 400 (CC).
66
Above n 2 at para 123.
67
Id at para 124.
68
Id at para 154.
69
Id at paras 159 and 168.
70
Id at para 155.
71
Id at para 169.
72
Fraser v ABSA Bank Ltd
[2006] ZACC 24
;
2007 (3) BCLR 219
(CC);
2007 (3) SA 484
(CC) at para 40.
73
Above n 2 at para 168.
74
Id at para 169. Similar reasoning was followed by Nugent JA in the
recent Supreme Court of Appeal decision of
Makhanya
above n 4
at paras 34-5, 54, 71 and 75.
75
See
Fedlife
above n 3 at para 17. Also see
Kriel
above n 4 at paras 2 and 9;
Makhanya
above n 4 at para 26;
Chirwa
(SCA) above n 4 at paras 58-65;
United National
Public Servants Association
above n 4 at paras 2-5;
Engineering
Council of SA
above n 4 at paras 122-31; and
Nakin
above
n 4 at para 4.
76
Kotze
above n 4 at paras 11-2;
Hlope
above n 4 at
paras 26-31;
SAPU
above n 4 at paras 59-68; and
Public
Servants Association
above n 4 at paras 11-6.
77
See the High Court decision in this matter:
Police and Prisons
Civil Rights Union and Another v Minister for Safety and Security
and Others
, Case No 2756/2006, 4 July 2008,
unreported. Also see
Nonzamo
above n 4 at para 39 and
Nakin
above n 4 at paras 24 and 28.
78
Makambi
above n 4 at para 15.
79
Mkumatela
above n 4 at para 9.
80
POPCRU
above n 4 at paras 58-61.
81
See
Chirwa
above n 2 at paras 133-4. Also see
SAPU
above
n 4 at para 51.
82
Above notes 1, 2, 3 and 4.
83
See, for example,
Fredericks
above n 1 at paras 11 and 32 and
the remarks of Cameron JA in the Supreme Court of Appeal judgment in
Chirwa
above n 4 at paras 60, 62-3 and 65.
84
See section 9(4) of the Constitution and the
Promotion of Equality
and Prevention of Unfair Discrimination Act 4 of 2000
.
85
Chirwa
above n 2 at para 41 Skweyiya J stated that—
“
the existence of a purpose-built employment
framework in the form of the LRA and associated legislation infers
that labour processes
and forums should take precedence over
non-purpose-built processes and forums in situations involving
employment-related matters.
At the least, litigation in terms of
the LRA should be seen as the more appropriate route to pursue.
Where an alternative cause
of action can be sustained in matters
arising out of an employment relationship, in which the employee
alleges unfair dismissal
or an unfair labour practice by the
employer, it is in the first instance through the mechanisms
established by the LRA that the
employee should pursue her or his
claims.”
Also in
Chirwa
above n 2 at para 124 Ngcobo J stated:
“
Where . . . an employee alleges non-compliance with
provisions of the LRA, the employee must seek the remedy in the LRA.
The employee
cannot . . . avoid the dispute resolution mechanisms
provided for in the LRA by alleging a violation of a constitutional
right
in the Bill of Rights. It could not have been the intention
of the Legislature to allow an employee to raise what is essentially
a labour dispute under the LRA as a constitutional issue under the
provisions of
section 157(2).
To hold otherwise would frustrate the
primary objects of the LRA and permit an astute litigant to bypass
the dispute resolution
provisions of the LRA.”
86
Id at para 65.
87
See, for example,
Chirwa
above n 2 at paras 66 and 124.
88
Hahlo and Kahn
The South African Legal System and its Background
(Juta & Co Ltd, Cape Town 1968) state at 214:
“
In the legal system the calls of justice are
paramount. The maintenance of the certainty of the law and of
equality before it,
the satisfaction of legitimate expectations,
entail a general duty of judges to follow the legal rulings in
previous judicial decisions.
The individual litigant would feel
himself unjustly treated if a past ruling applicable to his case
were not followed where the
material facts were the same. This
authority given to past judgments is called the doctrine of
precedent.”
89
[1997] ZASCA 12
;
1997 (3) SA 654
(SCA).
90
Id at 666F-G.
91
Certification of the Amended Text of the Constitution of the
Republic of South Africa, 1996
[1996] ZACC 24
;
1997 (1) BCLR 1
(CC);
1997 (2) SA 97
(CC).
92
Id at para 8.
93
Van der Walt v Metcash Trading Limited
[2002] ZACC 4; 2002
(5) BCLR 454 (CC); 2002 (4) SA 317 (CC).
94
Id at para 39.
95
Daniels v Campbell NO and Others
[2004] ZACC 14
;
2004 (7)
BCLR 735
(CC);
2004 (5) SA 311
(CC).
96
Id at para 94.
97
Id at para 95.
98
Above n 9.
99
Above n 10.
100
Above n 4 at paras 52-3.
101
Section 217(1) states:
“
When an organ of state in the national, provincial
or local sphere of government, or any other institution identified
in national
legislation, contracts for goods or services, it must do
so in accordance with a system which is fair, equitable,
transparent,
competitive and cost-effective.”
102
SAPU
above n 4 at para 57.
103
Above n 2 at paras 142 and 150.
104
Id at para 142.
105
Id at para 73.
106
Above n 1 at para 32.
107
The situation might be different where, for example, the appointment
or dismissal of the National Commissioner of the SAPS is at
stake.
This decision is taken by the President as head of the national
executive and is of huge public import.
108
According to
Makhanya
above n 4 at para 94 this was the true
ratio of the decision in
Chirwa
above n 2, not the lack of
“jurisdiction”.
109
See above for the wording of section 157(1) and (2).
110
Section 145 of the LRA, which provides for the review of arbitration
awards, states:
“
(1) Any party to a dispute who alleges a defect in
any arbitration proceedings under the auspices of the Commission may
apply to
the Labour Court for an order setting aside the arbitration
award—
(a) within six weeks of the date that the award was
served on the applicant, unless the alleged defect involves
corruption; or
(b) if the alleged defect involves corruption, within
six weeks of the date that the applicant discovers the corruption.
(1A) The Labour Court may on good cause shown condone
the late filing of an application in terms of subsection (1).
A
defect referred to in subsection (1), means—
(a) that the commissioner—
committed
misconduct in relation to the duties of the commissioner as an
arbitrator;
committed
a gross irregularity in the conduct of the arbitration
proceedings; or
exceeded
the commissioner’s powers; or
(b) that an award has been improperly obtained.
The
Labour Court may stay the enforcement of the award pending its
decision.
If
the award is set aside, the Labour Court may—
(a) determine the dispute in the manner it considers
appropriate; or
(b) make any order it considers appropriate about the
procedures to be followed to determine the dispute.”
111
See above for the wording of section 157(2).
112
See
Chirwa
above n 2 at para 118.
113
Graaff-Reinet Municipality v Van Ryneveld’s Pass Irrigation
Board
1950 (2) SA 420
(A) at 424.
114
Above n 13.
115
See
Fraser v ABSA Bank Ltd
above n 72 at para 40.
116
Above n 2 at paras 155 and 169, referred to in above; also see
Makhanya
above n 4 at paras 34 and 71.