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[2017] ZACC 45
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Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng and Others, Head of the Department of Health, Gauteng and Another v Public Servants Association obo Ubogu (CCT6/17, CCT14/17) [2017] ZACC 45; 2018 (2) BCLR 184 (CC); (2018) 39 ILJ 337 (CC); [2018] 2 BLLR 107 (CC); 2018 (2) SA 365 (CC) (7 December 2017)
Links to summary
Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Cases CCT 6/17 and 14/17
Case CCT 6/17
In the matter between:
PUBLIC SERVANTS ASSOCIATION
obo OLUFUNMILAYI ITUNU
UBOGU
Applicant
and
HEAD OF THE DEPARTMENT OF HEALTH,
GAUTENG
First Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH,
GAUTENG
Second Respondent
MINISTER OF PUBLIC SERVICE
AND
ADMINISTRATION
Third Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR FINANCE,
GAUTENG
Fourth Respondent
MINISTER OF
FINANCE
Fifth Respondent
Case CCT 14/17
In the matter between:
HEAD OF THE DEPARTMENT OF HEALTH,
GAUTENG
First Applicant
MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH,
GAUTENG
Second Applicant
and
PUBLIC SERVANTS ASSOCIATION
obo OLUFUNMILAYI ITUNU
UBOGU
Respondent
Neutral citation:
Public Servants Association obo Olufunmilayi Itunu Ubogu v
Head of Department of Health, Gauteng and Others
[2017] ZACC 45
Coram:
Nkabinde ADCJ,
Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga
J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgment(s):
Nkabinde ADCJ (majority): [1] to [80]
Jafta J (dissenting): [81] to [102]
Heard on:
18 May 2017
Decided on:
7 December 2017
Summary:
[Constitutional declaration of invalidity] — [section
38(2)(b)(ii) of Public Service Act] — [Labour Court
jurisdiction]
— [unilateral deductions of salary by state
employer] — [conflation of constitutional remedies] —
[unlawful limitation
of section 34 of the Constitution]
ORDER
On appeal from the Labour Court of South
Africa, Johannesburg:
1.
It is declared that section 38(2)(b)(i) of the Public Service Act 103
of 1994
is unconstitutional.
2.
The appeal is dismissed.
3.
The interim interdict in paragraph 2 of the order of the Labour Court
of South
Africa, Johannesburg, on 29 September 2016 stands.
4.
The matter is remitted to the Labour Court for that Court to
determine the disputes
between the parties regarding the recovery of
the amounts allegedly overpaid to Ms Olufunmilayi Itunu Ubogu.
5.
The Minister for Public Service and Administration is ordered to pay
the costs of the
applicant (in CCT 6/17) and the respondent (in CCT
14/17).
JUDGMENT
NKABINDE ADCJ (Cameron J, Froneman J,
Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ,
Zondo J concurring):
Introduction
[1]
This case concerns the validity of a
statutory provision that permits the state, as an employer, to
recover monies wrongly paid
to its employees directly from their
salaries or wages in the absence of any due process or agreement
between the parties.
It brings into sharp focus issues
regarding self-help an aspect of the rule of law
procedural fairness, and the common
law principle of set-off.
Key issues are whether the order of constitutional invalidity made in
the Labour Court falls within
the ambit of section 167(5) of the
Constitution – for confirmation by this Court − or
whether it is an interpretative
order that need not be confirmed.
[1]
If the order is a declaratory order of constitutional invalidity and
is confirmed, what will be an appropriate remedy?
If the
declaration of invalidity is not confirmed, should the respondents’
appeal be upheld?
[2]
[2]
The Labour Court declared section
38(2)(b)(i) of the Public Service Act
[3]
(Act) unconstitutional but invoked an interpretative remedial
mechanism to correct the defect in the impugned provision. That
section empowers the state, as an employer, to recover monies wrongly
paid to its employees directly from their salaries or wages
without
due process or agreement.
Parties
[3]
The applicant in the confirmation
application is the Public Servants Association of South Africa (PSA),
a duly registered trade
union acting on behalf of one of its members,
Ms Olufunmilayi Itunu Ubogu. She is a Clinical Manager: Allied,
at the Charlotte
Maxeke Johannesburg Academic Hospital.
[4]
The first to fifth respondents are
the Head of the Department of Health, Gauteng, the Member of the
Executive Council for Health,
Gauteng (MEC for Health) who is the
employer of Ms Ubogu, the Minister of Public Service and
Administration (Minister of Public
Service) who is responsible for
the administration of the Act and its regulations, the Member of the
Executive Council for Finance,
Gauteng (Finance MEC) and the
Minister of Finance, Gauteng (Finance Minister).
[4]
They are cited by virtue of their interest in the relief
sought.
[5]
The appellants are the Head of the Department of Health and the MEC
for Health. PSA is the respondent in the appeal.
Background
[5]
Ms Ubogu was appointed in 2006 as
the CEO of a hospital in Tshwane, falling under the Gauteng
Provincial Department of Health. In
2010, she was transferred
to a hospital in Johannesburg and was appointed to the position of
Clinical Manager: Allied. At
the time of the transfer, the
remuneration paid to a Clinical Manager: Allied was equal to that
paid to a Clinical Manager: Medical.
Shortly after the transfer
an occupational specific dispensation (OSD) came into operation.
In terms of the OSD, the
post of Clinical Manger: Medical attracted a
higher remuneration (Grade 12) than the post of Clinical
Manager: Allied (Grade
11).
[6]
From July 2010 until July 2015, Ms
Ubogu received remuneration at the rate applicable to the post of
Clinical Manager: Medical (Grade
12).
[7]
In a letter dated 10 September 2015,
the Provincial Department of Health Gauteng (Department) informed Ms
Ubogu that, in the process
of her redeployment, she had been
erroneously translated into a Grade 12 position
(Clinical Manager: Medical), as opposed
to a Grade 11
position (Clinical Manager: Allied). She was advised
that she thus owed the Department R794 014.33.
She
maintained that the Department translated her as Clinical Manager:
Medical and that the translation could not have affected
her starting
package in the new position, only the trajectory of her progression.
She relied on clause 7.1 of Resolution
2 of 2010 of the Public Health
and Social Development Sectoral Bargaining Council.
[6]
[8]
In September 2015, the Department
unilaterally deducted a sum from her salary to compensate for a part
of the overpayment.
Ms Ubogu was opposed to this and maintained
that the Department had no right to help itself to part of her
salary. A dispute
then arose between the parties.
[9]
Ms Ubogu referred the dispute to the
Public Health and Social Development Sectoral Bargaining Council.
The dispute was withdrawn
at arbitration proceedings and the
deductions were repaid. Ms Ubogu was placed back on a Grade 12
salary level. In
terms of the settlement between the parties,
Ms Ubogu reserved her right to “refer the dispute should the
need arise”.
In July 2016, the Department again withheld
a part of her salary. There is a dispute about whether Ms Ubogu
was afforded
an opportunity to make representations beforehand.
[7]
The latest deductions prompted urgent proceedings in the Labour
Court for interim relief.
[10]
PSA challenged the lawfulness of the
deductions on the grounds: that there was no overpayment; that if
there was overpayment, part
of the amount had prescribed; and that
section 38(2)(b)(i) of the Act, in terms of which the deductions had
been made, was unconstitutional.
[11]
The Labour Court, per Steenkamp J,
issued a rule
nisi
calling upon the Minister of Public Service, the Finance MEC and the
Finance Minister to show cause why: (i) it should not
declare
that the claim to recover the overpaid amounts had prescribed; (ii)
the unilateral deductions of monthly instalments were
not
ultra
vires
; alternatively, (iii) section
38(2)(b)(i) should not be declared unconstitutional and falls to be
read in a manner consistent with
the Constitution; (iv) section
38(2)(b)(i) should not be declared unconstitutional and struck down;
and (v) the Head
of the Department of Health and the MEC for
Health should not be directed to pay the costs jointly and
severally. Pending
the outcome of the application, the Head of
the Department of Health and the MEC for Health were interdicted from
making any further
deductions.
[8]
[12]
On the return day, orders 1.2 (that
the deductions are
ultra vires
),
1.3 (that section 38(2)(b)(i) is declared unconstitutional and falls
to be read in a manner consistent with the Constitution),
and 1.5
(that the Head of Department of Health and the MEC for Health are
directed to pay the costs) were pursued. PSA maintained
that
section 38(2)(b)(i) entitled the state to remain passive for
extensive periods and thereafter recover amounts in respect of
which
the claims would otherwise have prescribed; that the Department
should be directed to institute legal proceedings against
Ms Ubogu to
allow her to challenge the basis of the alleged deductions; and that,
if regard is had to sections 3(3) and 38(1)(c)(i)
of the PFMA, read
together with regulations 9.1.4 and 12 of the National Treasury
(Treasury) Regulations (Treasury Regulations)
the
Department is required to institute legal proceedings where any
unauthorised, irregular, fruitless and wasteful expenditure
was
found.
[13]
The Head of the Department of Health
and the MEC for Health contended that the reliance on prescription
was misplaced. They
said that prescription started running only
when the Department became aware of the overpayments. They also
contended that
Ms Ubogu could not claim benefits consonant with a
position of Clinical Manager: Medical whereas she was translated to
Clinical
Manager: Allied and had to be considered as such during the
implementation of the OSD; that Ms Ubogu had failed to avail
herself
of a number of opportunities to challenge the basis of the
alleged indebtedness; and that the measures put in place through
legislation,
including
,
section 38(1)(c) of the PFMA and regulations 9.1.4 and 12 of the
Treasury Regulations, ensured that recovery mechanisms were
instituted in an effective and appropriate manner in the collection
of all monies owed to the state.
[14]
The Labour Court considered whether
deductions made in terms of section 38(2)(b)(i) amounted to
untrammeled self-help, as prohibited
by section 1(c) of the
Constitution.
[9]
It held that the protections set forth in section 34 of the
Basic Conditions of Employment Act
[10]
(BCEA) – namely that an employer cannot make deductions from an
employee’s salary to set-off past overpayments without
the
employee’s prior agreement or a court order – are not
applicable to salary deductions in terms of section 38(2)(b)(i).
This is because section 34 exempts deductions effected in terms
of other laws.
[11]
The Court held that sections 3(3) and 38(1)(c) of the PFMA,
requiring the Department to seek the approval of the Treasury
when
collecting monies, could not be construed as limiting the state’s
discretion under section 38(2)(b)(i), to the
extent that
self-help was prohibited.
[12]
Section 38(2)(b)(i) thus gives the state, as an employer—
“
a
wide discretion in determining at any stage whether an employee has
received remuneration according to an incorrect salary, salary
scale
or award. The State can therefore, absent an agreement between
it and the concerned employee, or a collective agreement,
or a court
order, or an arbitration award, unilaterally decide on whether an
overpayment has been made and if so, can decide on
the method of
recovery and the period over which such recoveries may be made.”
[13]
[15]
The Court held that it was unclear
why section 38(2)(b)(i) did not, in the same manner as section
31(1)(a) − which relates
to “unauthorised remuneration”
− make provision for recovery of overpaid remuneration through
consent or legal
proceedings.
[14]
Moreover, the Court remarked, section 38(2)(b)(i) distinguishes
between employees in the service of the state and those who
are not,
sanctioning self help in respect of the former, whilst requiring
legal proceedings in the recovery process in respect
of the
latter.
[15]
[16]
The Labour Court concluded that the
deductions in terms of section 38(2)(b)(i) violated the spirit,
purport and objects of the Bill
of Rights and amounted to untrammeled
self-help.
[16]
It made the following order:
“
(i)
Order 1.3 as granted by Steenkamp J on 29 September 2016 is confirmed
to read:
‘
It
is declared that section 38(2)(b)(i) of the Public Service Act
(Proclamation 103 of 1994) is unconstitutional as presently
formulated,
and accordingly falls to be interpreted in a manner which
conforms with the provisions of the Constitution of the Republic of
South
Africa Act 108 of 1996 in particular sections 23(1), 25(1) and
34 thereof, to be read as follows:
‘
(b) been
overpaid or received any such other benefit not due to him or her—
(i)
An amount equal to the amount of
such overpayment shall be recovered from him or her by way of
deduction from his or her salary
of such instalments as the relevant
accounting officer and employee, if he or she is in the service of
the State, may agree, and
failing agreement by way of legal
proceedings, or if he or she is not so in service of the State, by
way of deduction from any
money owing to him or her by the State as
the relevant accounting officer and former employee may agree, and
failing agreement
by way of legal
proceedings, or partly in the former manner and partly in the
latter;
’
(ii)
The first and second respondents who had opposed the confirmation of
the order are
ordered to pay the costs of this application, jointly
and severally, the one paying the other to be absolved.”
[17]
[17]
PSA then lodged a confirmation
application in this Court. The appellants filed a notice of
appeal in terms of section 172(2)(d)
of the Constitution on the
grounds that the Labour Court erred in finding, among other things,
that the impugned provisions violated
the principle of legality,
allowed untrammeled self-help and violated sections 9(1), 23(1),
25(1) and 34 of the Constitution.
They submitted that the
Labour Court ought to have found that, in this context, the
provisions regulated the right of
set-off, which is neither
self-help, arbitrary, unfair, a deprivation of property nor an
inhibition to access to a court or other
independent and impartial
tribunal.
[18]
Pursuant to the directions issued by
the Chief Justice, the application for confirmation and appeal were
consolidated and set down
for hearing and the parties were invited to
file written submissions.
Submissions
[19]
PSA submits, among other things, that section 38(2)(b)(i)
sanctions self-help in that it permits deductions where the state is
the
sole arbiter concerning any dispute on allegedly wrongly granted
remuneration, as well as the appropriate means to recover the
indebtedness. In addition, the state is the self-appointed
executioner. Relying on
Khumalo
,
[18]
PSA submits that all this happened in the context of an inherently
unequal bargaining relationship. It argues that while
section
34(5) of the BCEA does not entitle the employer to unilaterally
effect deductions, the impugned provision is exempted from
the
limitations imposed in terms of the BCEA, because it is a “law”
for the purpose of section 34(1)(b) of the BCEA.
This
distinction, it is submitted, has no justifiable rationale when
regard is had to section 31 of the Act. It is
argued that the
unilateral powers given to the state in terms of the impugned
provision constitute self-help and violate the employee’s
rights guaranteed under sections 9, 23(1), 25(1) and 34 of the
Constitution.
[20]
The Head of the Department of Health
and the MEC for Health submit that section 38(2)(b)(i) is
consistent with the Constitution
and that the confirmation
application therefore falls to be dismissed. They reject the
Labour Court’s holding that
deductions in terms of section
38(2)(b)(i) amount to arbitrary self-help and thus violate the
principle of legality. They
argue that, as stated in
Chirwa
[19]
and
Gcaba
,
[20]
actions taken in the context of the employment relationship between
the state and its employees fall within the sphere of private
law and
cannot be qualified as administrative action. The principle of
legality, they argue, only applies to the sphere of
public law not
the sphere of private law. Even if the deductions were subject
to legality review, it is contended that the
deductions could not be
described as arbitrary, because they are based on an express
statutory provision.
[21]
It is argued that the impugned
provision permits deductions by way of set-off under the common
law.
[21]
The doctrine of set-off concerns a form of payment that occurs by
operation of law where common parties are mutually indebted.
It
does not amount to a deprivation of property. Additionally, the
Head of the Department of Health and the MEC for Health
submit that
the deductions are consistent with section 34(5) of the BCEA and
not unfair. Regarding the employee’s
right to access a
court, the Head of the Department of Health and the MEC for Health
maintain that action taken under section 38(2)(b)(i)
is not
determinative of any dispute. They submit that an employee is
at liberty to pursue the claim in a court or other independent
tribunal, where applicable, notwithstanding the provisions of
section 38(2)(b)(i).
[22]
Finally, the Head of the Department
of Health and the MEC for Health submit that the difference in
treatment between public and
private employees does not amount to a
violation of the right to equal protection as enshrined in section 9
of the Constitution.
The benefits conferred on private
employees in terms of section 34(1) of the BCEA do not fall within
the category of rights to
which any employee is entitled in all
circumstances.
[23]
Regarding their appeal, the
submissions by the Head of the Department of Health and the MEC for
Health are the same as those proffered
in opposing the confirmation
application. In the appeal, they ask this Court to set aside
and replace the Labour Court’s
order with an order
dismissing the application with costs.
[24]
On 9 May 2017, PSA filed its written
submissions in the appeal, elaborating on why section 38(2)(b)(i)
infringes upon an employee’s
rights under sections 9, 23, 25
and 34 of the Constitution. PSA contends that the mechanism in
the impugned provision is
not comparable to the doctrine of set-off,
in that it does not operate
ex lege
(by operation of law) but pursuant to unilateral determinations by
the employer as to the deductions to be effected.
[25]
The Minister of Public Service opposes the confirmation
proceedings on the basis that the proceedings are not properly before
this
Court.
[22]
It is submitted that, while the Labour Court appears to have
found that section 38(2)(b)(i) is constitutionally invalid,
it did
not issue an order of invalidity. Instead, and following the
doctrine of subsidiarity,
[23]
the Minister of Public Service argues that the Court interpreted the
impugned provision in terms of section 39(2) of the Constitution.
It
is said that when doing so, it necessarily saved the provision from a
declaration of invalidity because the exercise of
interpretation is
distinct from a declaration of invalidity.
[24]
There is thus no order of invalidity to be confirmed by this
Court.
[26]
The Minister of Public Service submits that whether leave to
appeal should be granted to this Court on the constitutionality of
the interpretation depends on whether there is a proper application
before this Court, namely an application for direct access.
It
is argued that PSA failed to demonstrate that it should be permitted
to bypass the Labour Appeal Court and appeal directly
to this Court.
It is not in the interests of justice that this Court deprives the
appellate court in labour matters of the
opportunity to express its
views. The issue, it is argued, raises a number of complex
questions, including whether the Labour
Court has jurisdiction to
strike down legislation in respect of which it does not expressly
have jurisdiction.
[27]
In the alternative, the Minister of Public Service argues that
section 38(2)(b)(i) does not infringe upon section 34 of the
Constitution
because section 34 only applies to disputes that are
capable of resolution by application of the law. Even if
section 34
applied to the employment relationship between the state
and its employees, section 38(2)(b)(i) – allowing the
state
to recover monies without the consent of the employees –
is not unconstitutional. Further, the Minister argues that
the
Act, read together with the BCEA, does not sanction self-help. It
is submitted that section 25(1) of the Constitution
does not find
application as the property in question belongs to the state. Even
if it is the property of the employee, the
deprivation of that
property is sanctioned by law of general application and envisages a
lawful purpose. The deprivation
therefore cannot be arbitrary.
[28]
Finally, the Minister of Public Service submits that –
in the event that the invalidity order is confirmed – this
Court
should suspend that order for a specified period in accordance
with section 172(1)(b) of the Constitution to enable Parliament to
remedy the constitutional defect.
Issues
[29]
The key issues for determination are
whether the Labour Court has jurisdiction to declare an Act of
Parliament unconstitutional
and invalid
and whether the
confirmation proceedings are competent and
properly before this Court. If they are, whether the order of
the Labour Court
should be confirmed. If the declaration of
invalidity is confirmed, what remedy would be appropriate? In
deciding whether
the declaration should be confirmed, it is necessary
to determine whether the deductions in terms of section 38(2)(b)(i)
constitute
(i) “unfettered self-help” in violation of
section 1(c) of the Constitution and (ii) set-off under the
common
law.
[30]
It may also be necessary to
determine whether that section limits the state employees’
rights in terms of sections 9(1), 23(1),
25(1)(a) and 34 of the
Constitution and, if so, whether the limitation is justifiable in
terms of section 36 of the Constitution.
[25]
Who should bear the costs in the confirmation proceedings? If
the declaration of unconstitutionality is not confirmed,
whether the
appeal should be upheld and who should bear the costs of the appeal?
Jurisdictional challenge
[31]
The challenge regarding the Labour Court’s lack of
jurisdiction to strike down legislation, other than that within its
jurisdiction,
in terms of the Labour Relations Act
[26]
(LRA), is a novel constitutional issue and also needs consideration.
[32]
The starting point is the Constitution. Section 166 of
the Constitution lists a number of courts. The list includes
“any other court established or recognised in terms of an Act
of Parliament, including
any court of a status similar to either
the High Court
or the Magistrates’ Courts”.
[27]
The Labour Court is established in terms of the LRA. It is, in terms
of section 151(1) of that statute, a court of law and
equity.
Section 151(2) reads:
“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 Division of the High Court of South Africa
has in relation to matters under its jurisdiction.”
This provision makes it clear that the
Labour Court’s inherent powers and standing, are equal to that
of the High Court.
It is a court of similar status to that of
the High Court.
[33]
Section 172 of the Constitution deals with the powers of
courts in constitutional matters. In relevant parts, it reads:
“
(1)
When deciding a constitutional matter within its power,
a
court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is
invalid to the extent of its inconsistency
;
and
(b)
may make any order that is just and equitable . . . .
. . .
(2)
(a) The Supreme Court of
Appeal, a High Court
or a court of similar status may make an order
concerning the constitutional validity of an Act of Parliament, but
an order of
constitutional invalidity has no force unless it is
confirmed by the Constitutional Court.
(b)
A court which makes an order of constitutional invalidity may grant a
temporary interdict
or other temporary relief to a party or may
adjourn the proceedings, pending a decision of the
Constitutional Court on the
validity of that Act or conduct.
. . .
(d)
Any person or organ of state with a sufficient interest may appeal or
apply directly
to the Constitutional Court to confirm or vary an
order of constitutional invalidity by a court in terms of this
subsection.”
It follows that, being a court of
similar status with the High Court, the Labour Court has the
power to make an order concerning
the constitutional validity of an
Act of Parliament.
[34]
Section 172(2) of the Constitution must be read with section
157(2) of the LRA in terms of which the Labour Court has jurisdiction
to decide constitutional issues. Section 157(2) provides:
“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.”
[35]
In terms of this subsection, the Labour Court retains its
concurrent jurisdiction with the High Court in its adjudication “of
any alleged or threatened violation of any fundamental rights
entrenched in chapter 2 of the Constitution.”
[28]
Therefore, an enquiry on whether it is competent for the Labour Court
to declare an Act of Parliament invalid must
be confined to
the interpretation of section 157(2). The claim in this case
was based on unilateral deductions by the state
that allegedly
constituted self-help in violation of Ms Ubogu’s rights,
including the right to equality, right to fair labour
practices, and
the right to have any dispute decided in a fair public hearing before
a court.
[29]
The alleged violation of Ms Ubogu’s rights arises from
employment and labour relations. Additionally, it involves
the
constitutionality of an administrative act or by the state in its
capacity as an employer.
[36]
Unlike section 157(1) of the LRA in terms of which the Labour
Court has exclusive jurisdiction in respect of all matters that are
to be determined by it, that Court did have jurisdiction in terms of
section 157(2) in respect of the violation of Ms Ubogu’s
rights, including the rights to fair labour practices and access to
courts, arising from employment and labour relations, and disputes
over the conduct of the state in its capacity as an employer, in
making arbitrary deductions from Ms Ubogu’s salary.
[37]
Section 157(2) of the LRA must thus be read with section 172
of the Constitution. The powers of courts in constitutional
matters,
as set out in section 172 above, must be read and understood
in conjunction with the powers of courts in section 167(5) of the
Constitution.
[30]
In terms of the latter, the Constitutional Court makes the
final decision whether an Act of Parliament is constitutional
and
must confirm any order of invalidity made by the Supreme Court of
Appeal, a High Court, or a court of similar status, before
that order
has any force.
[38]
Notably, the items in Schedule 6 to the Constitution are
relevant. Item 16 deals with courts. Item 16(1) reads:
“Every court
. . . existing when the new Constitution took effect, continues
to function and to exercise jurisdiction
in terms of the legislation
applicable to it . . . subject to—
(a)
any amendment or repeal of that legislation; and
(b)
consistency with the new Constitution.”
[39]
Item 16(6)(a) provides that as soon as practicable after the
Constitution took effect all courts including their structures,
composition,
functioning, and jurisdiction, and all relevant
legislation, must be rationalised with a view to establishing a
judicial system
suited to the requirements of the Constitution.
[40]
The Superior Courts Act
[31]
recognises, in its long title, that the rationalisation envisaged in
item 16(6)(a) is an on-going process that is likely to result
in
further legislative and other measures in order to establish a
judicial system suited to the requirements of the Constitution.
The objects of the Superior Courts Act, set out in section 2, are—
“
(1)
. . .
(a)
to consolidate and rationalise the laws pertaining to Superior Courts
[including the
Labour Court], as contemplated in item 16(6) of
Schedule 6 to the Constitution.
(b)
to bring the structures of the Superior Courts in line with the
provision of Chapter
8 and the transformative imperatives of the
Constitution.
. . .
(2)
This Act must be read in conjunction with Chapter 8 of the
Constitution, which contains
the founding provisions for the
structures and jurisdiction of the Superior Courts.”
[41]
Chapter 5 of the Superior Courts Act deals with orders of
constitutional invalidity. Section 15(1) provides that if the
“Supreme
Court of Appeal, a Division of the High Court, or any
competent court declares any Act of Parliament invalid as
contemplated in
section 172(2)(a) of the Constitution, that court . .
. must refer the order of constitutional invalidity to the
Constitutional
Court for confirmation.” Notably, schedule
2 of the Superior Courts Act deals with the amended laws which
include the
amendment of the LRA. Section 151(2) of the LRA now
states that the Labour Court is a Superior Court that has authority,
inherent powers, and standing, equal to a court of a Division of the
High Court of South Africa, in relation to matters under its
jurisdiction.
[42]
This matter was brought to the Labour Court as one falling
within its jurisdiction. Ms Ubogu relied on, among other
things,
the right to fair labour practices under section 23(1)
of the Constitution. The preamble to the LRA makes it plain
that
the purpose of the LRA is to give effect to this right.
Additionally, Ms Ubogu relied on the right to equality under section
9 and to have her dispute decided in a fair public hearing before a
court under section 34 of the Constitution. The matter
fell
within the concurrent jurisdiction of both the Labour Court and the
High Court. To that end, it was open for Ms Ubogu
to approach
either the High Court or the Labour Court. She approached the
latter.
[43]
In any event, section 158(1)(a)(iv) of the LRA empowers the
Labour Court to make “a declaratory order”.
Though
the power to make a declaration of constitutional invalidity
is not expressly listed, an interpretation of section 158(1)(a)(iv)
−
read with section 157(2) − that does not include such orders
may lead to an absurdity. In
New Clicks
,
Chaskalson CJ stated that a court may “depart from the clear
language of a statute where that would otherwise lead ‘to
absurdity so glaring that it could never have been contemplated by
the Legislature, or where it would lead to a result contrary
to the
intention of the Legislature, as shown by the context or by such
other considerations as the Court is justified in taking
into
account’”.
[32]
The avoidance of absurdity, which is considered a “fundamental
tenet of statutory interpretation” must be guided
by the
“riders”—
“
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where
reasonably possible, legislative provisions ought to
be interpreted to preserve their constitutional validity.”
[33]
[44]
I have had the benefit of reading Jafta J’s judgment in
which he concludes that the Labour Court lacked jurisdiction to
declare
the impugned provision invalid. I do not agree.
If, in terms of section 157(2) of the LRA, the Labour Court shares
the High Court’s jurisdiction in respect of any alleged or
threatened violation of any fundamental right entrenched in
chapter 2
of the Constitution, the question is: what is the High Court’s
jurisdiction in this regard? The High Court’s
jurisdiction includes the ability to declare constitutionally
invalid, legislation that is the source of the violation of the
fundamental right concerned. Surely, then, that must mean in
terms of section 157(2) the Labour Court has that same jurisdiction.
[45]
The approach in Jafta J’s judgment and the conclusion
that the Labour Court lacked jurisdiction will have serious practical
ramifications, not only for litigants but also the proper
administration of justice. If indeed the Labour Court lacked
jurisdiction,
this means that Ms Ubogu would have had to approach the
Labour Court to review the decision of the state in its capacity as
employer
and the High Court for a declaration of constitutional
invalidity of the impugned provisions, on a similar set of facts.
The
speedy resolution of this labour dispute would have been
thwarted and the costs in this litigation for Ms Ubogu would have
increased
exponentially. Additionally, the judicial resources
would have been unnecessarily doubled.
[46]
Properly read, the LRA must be understood as permitting the
Labour Court to have the power to declare an Act of Parliament
invalid and for that Court to grant an effective remedy to safeguard
against the alleged violation of employees’ rights, including
the right to fair labour practices. That will moderate delays
and high costs in litigation and will save judicial resources.
Additionally, the jurisdiction of the Labour Court will be
rationalised consistently with the Constitution. I conclude
that
the Labour Court is a court of a similar status as the High
Court having jurisdiction to make an order concerning the
constitutional
validity of an Act of Parliament. To hold
otherwise will make nonsense of the constitutional and legislative
scheme.
Besides, the envisaged and on-going rationalisation −
to obviate fragmented courts’ structures, functioning and
jurisdiction
that existed at the advent of the Constitution −
will be frustrated.
Are the confirmation
proceedings properly before this Court?
[47]
The Minister of Public Service contends
that the confirmatory proceedings are not properly before this
Court. It is argued
that whilst
the Labour Court seems
to have concluded that section 38(2)(b)(i) is unconstitutional, it
did not issue an order of invalidity.
It is argued that the
Labour Court merely interpreted the impugned provision in terms of
section 39(2) of the Constitution
and thus saved the provision from a
declaration of invalidity. The Minister’s challenge was
that the order of the Labour
Court does not constitute an order as
contemplated in section 167(5) of the Constitution.
[48]
To determine whether the confirmatory proceedings are properly
before this Court it is necessary to have regard to the application
before the Labour Court and the final order it granted.
[49]
In the Labour Court, PSA challenged,
among other things, the lawfulness of the deductions and the
constitutionality of section 38(2)(b)(i)
of the Act, in terms of
which the deductions had been made. The application in that
Court was confusing because the constitutional
challenge was not
explicitly pleaded. This requirement, as was stated in
Phillips
,
[34]
“ensures that the correct order is made”, and “that
all interested parties have an opportunity to make
representations.”
[35]
[50]
In
Garvas
,
Jafta J (albeit the minority) emphasised the importance of accuracy
in the pleadings. He remarked:
“
Orders
of constitutional invalidity have a reach that extends beyond the
parties to a case where a claim for a declaration of invalidity
is
made. But more importantly these orders intrude, albeit in a
constitutionally permissible manner, into the domain of the
legislature. The granting of these orders is a serious matter
and they should be issued only where the requirements of the
Constitution for a review of the exercise of legislative powers have
been met.
. . .
Holding
parties to pleadings is not pedantry. It is an integral part of
the principle of legal certainty which is an element
of the rule of
law, one of the values on which our Constitution is founded.
Every party contemplating a constitutional challenge
should know the
requirements it needs to satisfy and every other party likely to be
affected by the relief sought must know precisely
the case it is
expected to meet.”
[36]
[51]
The inaccuracy in pleading in this
case has, as will be illustrated in a short while, resulted in the
confusing and extraordinary
orders by the Labour Court. That
Court issued a rule
nisi
declaring the impugned provision invalid. It called the
Minister of Public Service, the Finance MEC and the Finance Minister
to show cause, among other things, why the unilateral deductions of
monthly instalments were not
ultra vires
.
Alternatively, why section 38(2)(b)(i) should not be declared
unconstitutional or could not be read in a manner consistent
with the
Constitution.
[52]
On the return day, PSA sought
confirmation of the rule
nisi
in relation to orders in paragraphs 1.2, 1.3, and 1.5.
[37]
However, in its submission, it insisted on it being granted a
“declaration of constitutional invalidity” of
section 38(2)(b)(i).
[38]
[53]
The Labour Court, per Tlhotlhalemaje
J, analysed the rule of law principle and its components, including
principles of legality
and self-help
[39]
as was discussed in
Chief Lesapo
.
[40]
It discussed and examined the principles of legality and considered
whether deductions made in terms of section 38(2)(b)(i)
amounted to
untrammeled self-help, as prohibited by the principle of legality in
terms of section 1(c) of the Constitution.
[41]
It held that an employer cannot make deductions from an employee’s
salary to set-off past overpayments without the
employee’s
prior agreement or a court order. It held further that the
impugned provisions sanctions self-help
and distinguished between
employees in the service of the state and those who are not, in that,
in respect of the former it does
not require consent or legal
proceedings in the recovery process. The Court held that the
deductions violated the spirit,
purport and objects of the Bill of
Rights and amounted to untrammeled self-help.
[42]
[54]
The Labour Court also examined the
interpretative provision of the Constitution in terms of which courts
are enjoined to interpret
legislation to “promote the spirt,
purport and objects of the Bill of Rights.”
[43]
It confirmed the provisional order by issuing a confusing order,
declaring the impugned provision “unconstitutional
as presently
formulated, and accordingly falls to be interpreted in a manner which
conforms with the provisions of the Constitution
. . . [in]
sections 23(1), 25(1) and 34.” The Court read words
into the provision.
[44]
[55]
By so doing, the Labour Court
conflated the interpretative principles with those of legality.
This conflation is illustrated
by certain portions of the
Labour Court judgment where it said that on its proper
construction, the impugned provision allows
untrammeled self-help on
the part of the state in recovering public funds and that it cannot
be countenanced.
[45]
But then the Court, as shown above, fashioned a mixed-up order
declaring the impugned provision unconstitutional and fashioned
an
interpretative remedy of reading-in to cure the defect.
[56]
In
National
Coalition
, this Court explicitly
distinguished the remedies of reading-in and reading-down.
[46]
It said that reading-in is a constitutional remedy granted by a court
after declaring an impugned provision unconstitutional
and invalid
with a view to adding words to the statutory provision in question to
remedy the defect in it. This method of
controlling the impact
of invalidity must be distinguished from the interpretative method of
reading-down
.
[57]
As Jafta J cautioned in
Garvas
,
“holding parties to pleadings is not pedantry.”
[47]
The vague pleadings here resulted in the Labour Court conflating the
interpretative process with the one of declaring the
impugned
provision to be inconsistent with the Constitution and thus invalid.
The Court then confused the remedy generally
referred to as
reading-down – an interpretive tool – with reading in;
a more invasive remedy invoked after a provision
has been found
constitutionally invalid.
[48]
[58]
Despite the inaccuracy and
conflation, the Labour Court did, in substance, declare section
38(2)(b)(i) unconstitutional. The
order was competent and the
confirmation proceedings are thus properly before this Court.
The question then arises whether
the declaration of invalidity should
be confirmed. And, if it should, what will be an appropriate
remedy?
Should the declaration
of invalidity be confirmed?
[59]
The Labour Court is, in terms of
section 172(2)(a) of the Constitution,
[49]
a Court of similar status as a High Court.
[50]
It may thus make an order of constitutional invalidity of an Act of
Parliament, which has no force unless it is confirmed
by this Court
in terms of section 167(5) of the Constitution.
[51]
The Labour Court held that “in line with
Chief
Lesapo
. . . section 38(2)(b)(i) allows
untrammeled self-help by the state and can thus not be countenanced
in a constitutional democracy.”
[52]
[60]
Section 38 of the Act bears
repeating in relevant parts:
“
Wrongly
granted remuneration
(1)
(a) If an incorrect salary,
salary level,
salary scale or reward is awarded to an employee, the
relevant executive authority shall correct it with effect from the
date
on which it commenced.
(b)
Paragraph (a) shall apply notwithstanding the fact that the employee
concerned was
unaware that an error had been made in the case where
the correction amounts to a reduction of his or her salary.
(2)
If an employee contemplated in subsection (1) has in respect of his
or her salary,
including any portion of any allowance or other
remuneration of any other benefit calculated on his or her basic
salary or salary
scale or awarded to him or her by reason of his or
her basic salary—
. . .
(b)
been overpaid or received any such other benefit not due to him or
her—
(i)
an amount equal to the amount of the overpayment shall be recovered
from him
or her by way of the deduction from his or her salary of
such instalments as the relevant accounting officer may determine if
he
or she is in the service of the State, or, if he or she is not so
in service, by way of deduction from any moneys owing to him or
her
by the State, or by way of legal proceedings, or partly in the former
manner and partly in the latter manner.”
[61]
The foundational values of the
Constitution include the supremacy of the Constitution and the rule
of law.
[53]
This supremacy connotes that “law or conduct inconsistent with
[the Constitution] is invalid, and the obligations imposed
by it must
be fulfilled.”
[54]
[62]
In any event, to the extent that it
is necessary to deal with the limitation of the right to have
judicial redress as self-help
denotes, section 34 of the Constitution
guarantees everyone the right “to have any dispute that can be
resolved by the application
of law decided in a fair public hearing
before a court”. This section not only guarantees
everyone the right to have
access to courts but also “constitutes
public policy” and thus “represents those [legal
convictions and] values
that are held most dear by the society.”
[55]
As this Court has repeatedly said before, the right to a fair public
hearing requires “procedures . . . which, in any
particular
situation or set of circumstances, are right and just and fair”.
[56]
Notably, none of the respondents has suggested that the limitation of
the right to have judicial redress is reasonable and
justifiable in
an open and democratic society based on human dignity, equality
and freedom.
[63]
Regarding the principle of fair
procedure, this Court remarked in
De
Lange
—
“
[a]t
heart, fair procedure is designed to prevent arbitrariness in the
outcome of the decision. The time-honoured principles
that
no-one shall be the judge in his or her own matter - and that the
other
side should be heard [
audi
alteram partem
] - aim toward
eliminating the proscribed arbitrariness in a way that gives content
to the rule of law. They reach deep down
into the adjudicating
process, attempting to remove bias and ignorance from it. . . .
Everyone has the right to state
his or her own case
, not because his or
her version is right, and must be accepted, but because, in
evaluating the cogency of any argument, the arbiter,
still a fallible
human being, must be informed about the points of view of both
parties in order to stand any real chance of coming
up with an
objectively justifiable conclusion that is anything more than
chance. Absent these central and core notions, any
procedure
that touches in an enduring and far-reaching manner on a vital human
interest . . . points in the direction of a violation”.
[57]
[64]
Although section 38(2)(b)(i) is a
statutory mechanism to ensure recovery of monies wrongly paid to an
employee out of the state
coffers, the provision gives the state free
rein to deduct whatever amounts of money allegedly wrongly paid to an
employee
[58]
without recourse to a court of law. The alleged indebtedness
here is R675 092.56. The state determined, arbitrarily,
the amount of the monthly instalments so as to avoid what it believed
was the necessity for Treasury approval of an instalment
plan over 12
months. Given that the alleged indebtedness was R675 092.56,
the monthly deduction was in the sum of about
R56 257.72 from
Ms Ubogu’s gross salary of R62 581.42. It meant
that, even at the rate of her downgraded
gross salary of R40 584.85,
Ms Ubogu could not afford to pay the alleged debt.
[65]
The effect of the provision is to
impose strict liability on an employee. The deductions may be
made without the employee
concerned making representations about her
liability and even her ability to pay the instalments. The
impugned provision
also impermissibly allows an accounting officer
unrestrained power to determine, unilaterally, the instalments
without an agreement
with an employee in terms of which the
overpayment may be liquidated.
[66]
Section 38(2)(b)(i) undermines a
deeper principle underlying our democratic order. The
deductions in terms of that provision
constitute an unfettered
self-help − the taking of the law by the state into its own
hands and enabling it to become the
judge in its own cause, in
violation of section 1(c) of the Constitution. Self-help, as
this Court held in
Chief Lesapo
,
“is inimical to a society in which the rule of law prevails, as
envisaged in section 1(c) of our Constitution.”
[59]
Although there may be circumstances when good reasons exist −
justifying self-help
[60]
− this is however not a case of that kind.
[67]
By aiding self-help, the impugned
provision allows the state to undermine judicial process −
which requires disputes be resolved
by law as envisaged in section 34
of the Constitution. This provision does not only guarantee
access to courts but also
safeguards the right to have a dispute
resolved by the application of law in a fair hearing before an
independent and impartial
tribunal or forum.
[61]
It is not insignificant that section 31 of the Act envisages recovery
of money, in the case of unauthorised remuneration,
“by way of
legal proceedings”.
[62]
The Minister of Public Service argues that Ms Ubogu’s
section 34 right was not violated because that protection
applies
only to disputes that are capable of resolution by application of
law. This contention is flawed. The Minister
does not
explain why the existing dispute was not capable of resolution by the
application of law in a fair public hearing before
a court. The
mechanism through section 38(2)(b)(i), as currently formulated, is
clearly unfair. It promotes self-help
and imposes strict
liability on an employee in respect of overpayment irrespective of
whether the employee can afford the arbitrarily
determined
instalments and was afforded an opportunity for legal redress.
[68]
On those bases, section 38(2)(b)(i)
does not pass constitutional muster. However, because of the
conflation of the constitutional
remedies by the Labour Court,
the declaration of invalidity as currently fashioned cannot be
confirmed. It needs to
be reformulated. Accordingly, in
the view I take of the matter, it is not necessary to determine
whether the impugned provision
limits the rights in
sections 9
(1),
23(1) and 25(1) of the Constitution and whether the limitation of
these rights is reasonable and justifiable in terms of section
36 of
the Constitution.
Do deductions under
section 38(2)(b)(i) regulate the right of set-off?
[69]
Before I deal with the remedy, it is
necessary to address the question whether the section 38(2)(b)(i)
deductions regulate set-off.
The appellants submit that
section 38(2)(b)(i) regulates the right of set-off, which is not
self-help, arbitrary or unfair.
The underlying premise to the
argument that common law set-off does not amount to a form of
self-help, is not correct.
[70]
The doctrine of set-off is
recognised under the common law. The Appellate Division,
as the Supreme Court of Appeal was
then known, pointed out in
Schierhout
that:
“
When
two parties are mutually indebted to each other, both debts being
liquidated and fully due, then the doctrine of compensation
comes
into operation. The one debt extinguishes the other
pro
tanto
[only
to the extent of the debt] as effectually as if payment had been
made”.
[63]
[71]
In
Harris
,
Rosenow J remarked that the “origin of the principle appears
rather to have been a common-sense method of self-help”.
[64]
In my view, the mechanisms in the impugned provision are not
comparable to set-off under the common law. The doctrine
of
set-off does not operate
ex lege
(as
a matter of law). Besides, there are no mutual debts.
Here, the deductions in terms of section 38(2)(b)(i) are made
from an
employee’s salary. The dispute regarding whether the
translation of her position as Clinical Manager: Medical
affected her
starting package on the new position remains unresolved.
Therefore, the parties cannot be said to be mutually
indebted to each
other. It is arguable that the alleged debt can, in the
circumstance, be said to be fully due.
[72]
The doctrine cannot be invoked to defeat
the employee’s claim in relation to her salary. Particularly,
where a dispute
surrounding the translation of her position that,
allegedly, did not affect her starting package, had not been resolved
by the
application of law in a fair hearing before a court. At
the risk of repetition, the mechanism in the impugned provision
constitutes
self-help. As the Labour Appeal Court
correctly observed in
Western Cape
Education Department
, t
he state
has an obligation to exercise its power under section 38(2)(b)(i)
reasonably and with regard to procedural fairness.
[65]
Indeed, the notions of fairness and justice
inform public policy − which takes into account the necessity
to do simple justice
between individuals.
[66]
The contention that a deduction under section 38(2)(b)(i) regulates
the right of set-off is, in the circumstance, flawed.
However,
this should not be understood to suggest that there can never be
instances in which the doctrine of set off, especially
where
there are mutual debts in existence, may be invoked.
Remedy
[73]
This Court has broad remedial powers to fashion a remedy that
is “just and equitable” following a declaration of
invalidity
in terms of section 172(1) of the Constitution.
Orders of constitutional invalidity have a reach that extends beyond
the
parties.
[67]
The envisaged order must also be effective in relation to the
successful litigant and others similarly placed. It must
take
into account the interests of the state because such orders
invariably intrude, albeit in a constitutionally permissible manner,
into the domain of the other spheres of government. Depending
on the circumstances of each case, the order that is just and
equitable may include an order limiting the retrospective effect of
the declaration of invalidity or its suspension. This
allows a
competent authority to cure the defect. The evidence before us
warrants a determination of a just and equitable
remedy.
[74]
The Minister of Public Service submits that, if the Labour
Court’s order constitutes a declaration of constitutional
invalidity
and is confirmed, the declaration of invalidity must be
suspended to enable Parliament to cure the defect in the
legislation.
The Minister submits that the question whether a
different regime should apply in relation to the sphere of recovery
of monies
overpaid by the state engages a multi-faceted set of
interests. It is submitted that the appropriate forum for
balancing
those interests is thus the legislative sphere.
[75]
The applicant has been successful because, as mentioned above,
section 38(2)(b)(i) does not pass muster
.
Ms Ubogu is thus entitled to an effective remedy but the interests of
good government should also be taken into account
when an appropriate
remedy is considered.
[68]
Having established that the impugned provision offends the rule of
law, in that it permits self-help and attenuates Ms Ubogu’s
procedural rights to fair legal redress, the appropriate remedy
should obviate self-help and arbitrary deductions from Ms Ubogu’s
salary by the state.
[76]
When issuing a rule
nisi
, Steenkamp J, also interdicted
the Head of the Department of Health and the MEC for Health from
making any further deductions from
Ms Ubogu’s
remuneration. The relevant part of that order reads:
“
2.
Pending the outcome of this application the [Head of the Department
of Health and MEC for
Health] be and are hereby interdicted from
making any further deductions from [Ms Ubogu’s]
remuneration (including but
not limited to her monthly salary, annual
bonus or performance awards) in recovery of the amounts allegedly
erroneously overpaid
to her.”
[69]
[77]
On the return day, Tlhotlhalemaje J confirmed part of the
interim order,
[70]
and the interim interdict above was neither discharged nor confirmed
nor appealed against. The interim interdict stands.
For
clarity, it means that with effect from 29 September 2016,
no deductions were made in light of that interdict.
To that
end, Ms Ubogu has been granted an effective interim remedy in her
favour, pending the determination of the disputes
between the
parties. The order that I make will reflect this. In the
circumstances, it will be appropriate to remit
the matter back to the
Labour Court. This will make it possible for the disputes
between the parties to be resolved
by application of law in a fair
public hearing. The disputes include the correctness of the
recovery of the amounts allegedly
overpaid to Ms Ubogu and whether
the translation of her position as Clinical Manager: Medical affected
her starting package on
the new position.
[78]
There can be no doubt that the recovery of monies overpaid by
the state engages multi-faceted interests. Section 34(1) of the
BCEA may be a point of reference when the defect in the impugned
legislation is remedied.
[71]
This section prohibits an employer from making deductions from an
employee’s remuneration unless by agreement or unless
the
deduction is required or permitted in terms of a law or collective
agreement or court order or arbitration award. It
bears
mentioning that section 34(5) read with section 34(1) of the BCEA
does not authorise arbitrary deductions. Therefore,
the
appropriate forum for balancing different interests is Parliament and
it will be open to it to consider, among other things,
the impact of
section 34 of the BCEA and the potential inequality between public
service employees and those falling outside the
public service who
have been overpaid for reasons covered by section 31 of the Act.
Accordingly, reading-in will not be appropriate
here. It will
be just and equitable to issue an order declaring section 38(2)(b)(i)
of the Act unconstitutional.
Costs
[79]
The applicant, as the successful party in challenging the
constitutionality of the impugned provisions, is entitled to costs.
The Minister
of Public Service, who is responsible
for the administration of the Act and its regulations, should pay the
costs of PSA.
Order
[80]
The following order is made:
1.
It is declared that section 38(2)(b)(i) of the Public Service Act is
unconstitutional.
2.
The appeal is dismissed.
3.
The interim interdict in paragraph 2 of the order of the Labour Court
of South
Africa, Johannesburg, on 29 September 2016 stands.
4.
The matter is remitted to the Labour Court to determine the disputes
between
the parties regarding the recovery of the amounts allegedly
overpaid to Ms Olufunmilayi Itunu Ubogu.
5.
The Minister for Public Service and Administration is ordered to pay
the costs
of the applicant (in CCT 6/17) and the respondent (in CCT
14/17).
JAFTA J:
[81]
I have had the benefit of reading the judgment prepared by the
Acting Deputy Chief Justice (first judgment).
I
disagree that the appeal should be dismissed and that the declaration
of invalidity made by the Labour Court must be confirmed.
My
disagreement with the first judgment hinges on whether the
Labour Court had jurisdiction to declare an Act of Parliament
invalid.
[82]
Jurisdiction of all courts may be traced to the Constitution
which vests the judicial authority in the courts. The entire
judicial system is carefully constructed in the Constitution.
[72]
The composition and jurisdiction of the various courts are provided
for. But some specialist courts like the Labour
Court, Equality
Court and the Competition Appeal Court are established in terms of
legislation. Therefore the Constitution
is the right place at
which to commence the enquiry into whether the Labour Court had
jurisdiction to declare an Act of Parliament
invalid.
Court structure and jurisdiction
[83]
The apex court is the Constitutional Court whose composition
and jurisdiction are defined by section 167 of the Constitution.
[73]
Notably, section 167(5) mentions other Courts by name except courts
of a status similar to the High Court. This provision
does not
confer jurisdiction on courts of a status similar to the High Court.
Rather it stipulates that orders of constitutional
invalidity made by
other Courts have no legal effect unless and until confirmed by this
Court. Implicitly, section 167(5)
recognises that other courts
too have jurisdiction to invalidate an Act of Parliament or conduct
of the President. But this
section cannot be read as the source
of their jurisdiction. Each of those courts has its own source
of jurisdiction.
[84]
Immediately below the Constitutional Court, the Constitution
places the Supreme Court of Appeal. Section 168 defines its
composition
and competence.
[74]
As its name suggests, this Court entertains appeals on constitutional
and non constitutional matters. This means
that it may
declare an Act of Parliament or conduct of the President to be
invalid, on appeal. If that occurs, its order
is subject to
confirmation by the Constitutional Court.
[85]
The High Court occupies a position that is immediately below
the Supreme Court of Appeal. The High Court is established
in terms of section 169 of the Constitution but its composition is
defined by the Superior Courts Act. Section 169 provides:
“(1)
The High Court of South Africa may decide—
(a)
any constitutional matter except a matter that—
(i) the
Constitutional Court has agreed to hear directly in terms of section
167(6)(a);
or
(ii) is assigned by an Act
of Parliament to another court of a status similar to the
High Court
of South Africa; and
(b) any other matter not
assigned to another court by an Act of Parliament.
(2) The High Court of South
Africa consists of the Divisions determined by an Act of
Parliament,
which Act must provide for—
(a) the establishing of
Divisions, with one or more seats in a Division; and
(b) the assigning of jurisdiction
to a Division or a seat within a Division.
(3)
Each Division of the High Court of South Africa—
(a)
has a Judge President;
(b)
may have one or more Deputy Judges President; and
(c)
has the number of other judges determined in terms of national
legislation.”
[86]
It is apparent from the language of this section that the High
Court enjoys a wide constitutional jurisdiction that is limited only
in two respects. First, it may not decide matters that fall
within the exclusive jurisdiction of the Constitutional Court.
Nor may it entertain a matter which this Court has agreed to hear.
Second, it may not adjudicate a constitutional matter
assigned by an
Act of Parliament to another court of a status similar to the High
Court.
[75]
With regard to non-constitutional matters, the High Court may decide
any matter not assigned to another court by an Act of Parliament.
[87]
A proper reading of section 169(1) reveals that no provision
of the Constitution may be read as directly conferring jurisdiction
upon the Labour Court or other courts of similar status. This
is because section 169 declares that courts of a status similar
to
the High Court may be assigned constitutional jurisdiction by an Act
of Parliament. If that jurisdiction is conferred
on a court of
a status similar to the High Court, the High Court’s
jurisdiction is ousted by section 169(1)(a)(ii).
Conversely, if
the High Court has jurisdiction over a constitutional matter, on
a proper interpretation of section 169, the
other courts may have no
jurisdiction over the same matter, barring the Supreme Court of
Appeal and this Court.
[88]
Since here we are concerned with the jurisdiction of the
Labour Court over a constitutional matter, a court of status similar
to
the High Court, section 169 directs us to search for this
jurisdiction in an Act of Parliament.
[76]
And that Act of Parliament is the LRA.
Labour Court’s jurisdiction
[89]
Section 157 of the LRA provides:
“(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.
(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 for in section 158(2), the Labour Court does not
have jurisdiction
to adjudicate an unresolved dispute if this Act or
any employment law requires the dispute to be resolved through
arbitration.”
[90]
Section 157(1) sets out jurisdiction that is exclusive to the
Labour Court. This section proclaims that all matters which
“are to be determined by the Labour Court” in terms of
the LRA or any other law, fall within the exclusive jurisdiction
of
that Court.
[77]
Whereas section 157(2) lists constitutional matters over which the
Labour Court has concurrent jurisdiction with the
High Court.
This is evident from the opening words of the latter provision,
especially the use of the word “concurrent”.
[91]
Contrary to section 169(1)(a)(ii) of the Constitution, section
157(2) of the LRA does not confer exclusive constitutional
jurisdiction
on the Labour Court. This misalignment may be due
to the fact that the LRA preceded the Constitution. It came
into
effect under the interim Constitution in terms of which only the
Constitutional Court could declare Acts of Parliament to be
invalid.
[78]
Parliament has not amended section 157 to remove the misalignment,
after the Constitution came into operation in February
1997. As
a result section 157(2) still retains the concept of concurrent
jurisdiction.
[92]
It is this concurrent jurisdiction that has led to conflicting
decisions in the High Court.
[79]
This controversy was settled by this Court in
Fredericks
.
[80]
This Court construed section 157(1) restrictively to encompass only
those matters which are to be determined by the Labour
Court.
With regard to section 158 of the LRA O’Regan J said:
“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.”
[81]
[93]
The Labour Court’s jurisdiction to decide constitutional
issues is conferred by section 157(2) and by this provision alone.
Therefore, an enquiry on whether it is competent for the Labour Court
to invalidate an Act of Parliament must be confined to the
interpretation of section 157(2) of the LRA. This is so because
constitutional jurisdiction may be conferred on a court of
status
similar to the High Court only by means of an Act of
Parliament. It is apparent from the provisions of Chapter 8
of the Constitution that the Constitution itself does not bestow
jurisdiction on specialist courts such as the Labour Court, the
Competition Appeal Court and the Equality Court.
[94]
But the Constitution embraces the fact that if these courts
are given a status equal to that of the High Court, they may as well
be granted jurisdiction to declare Acts of Parliament to be invalid.
However, that declaration, like those of the High Court
and the
Supreme Court of Appeal, may only take effect if confirmed by the
Constitutional Court. But this Court has the competence
to
confirm only a declaration of invalidity made by a court that has
jurisdiction to do so. Absent the jurisdiction to declare
the
invalidity, there can be no confirmation.
[95]
Since the enquiry has narrowed down to section 157(2) of the
LRA, it is to that provision that our focus should be directed.
That section raises three issues in respect of which it confers
concurrent jurisdiction upon the Labour Court and the High Court.
All three relate to “any alleged or threatened violation”
of any fundamental right entrenched in chapter 2 of the
Constitution. However, the “alleged or threatened
violation” must arise 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.”
[96]
Evidently a constitutional claim envisaged in section 157(2)
must, first and foremost, be in respect of a violation of a
fundamental
right. Second, the dispute must be related to the
constitutionality of specified acts like an executive or
administrative
act or conduct of the state. Third, the act or
conduct itself must be performed by the state in the particular
capacity of
an employer.
[97]
While it is true that the current dispute arose from
employment, it does not follow without more that this fact alone
confers on
the Labour Court the jurisdiction to declare an Act of
Parliament to be invalid. Nor can a dispute arising from the
application
of a law falling under the administration of the Minister
of Labour clothe the Labour Court with that power. The fact
that
these two issues may be described as constitutional issues does
not empower the Labour Court to strike down legislation.
[98]
The power of the Labour to declare something unconstitutional
is contained in subsection (2)(b) of section 157. That power
is
limited to the constitutionality of executive acts, administrative
acts and conduct or a threat to commit any of these acts.
This
list does not include the constitutionality of Acts of Parliament.
The reason for this omission was that at the time
the LRA came into
force in November 1996, the Constitutional Court was the only Court
that could declare an Act of Parliament to
be invalid.
[82]
Under the interim Constitution, all claims on the invalidity of an
Act of Parliament were referred to the Constitutional
Court.
[83]
The other courts could decide issues other than the validity of an
Act of Parliament because the interim Constitution conferred
the
jurisdiction to strike down those Acts on the Constitutional Court
alone.
[99]
Before the Constitution came into operation in February 1997,
section 157(2) of the LRA could not be construed as giving the Labour
Court jurisdiction to declare Acts of Parliament invalid. This
was so because its language did not reasonably carry that
meaning.
Nor was the provision contemplated to confer that power. There
is nothing that warrants that the same language
be now given a
different meaning. The scope of section 157(2) remains the
same. The fact that the Constitution now
recognises that courts
of a status similar to the High Court may be given the power to
invalidate Acts of Parliament does not justify
a different
interpretation of section 157(2).
[100]
The provision does not extend the entire constitutional
jurisdiction of the High Court to the Labour Court. The
concurrent
jurisdiction is limited to claims including the violation
of fundamental rights, arising from one of three specified instances
which do not include validity of an Act of Parliament. While it
is true that deductions made on Ms Ubogu’s salary may
have
violated her fundamental rights and as a result the Labour Court had
jurisdiction to entertain that dispute, it did not follow
automatically that the Labour Court could declare invalid the Act in
terms of which the deductions were effected. Expanding
the
constitutionality jurisdiction conferred on the Labour Court by
section 157(2) of the LRA to include constitutionality of an
Act of
Parliament, is at variance with the approach adopted in
Zantsi
.
[84]
[101]
It follows that the Labour Court lacked the jurisdiction
to declare the impugned provision invalid. Consequently its
order may not be confirmed.
[102]
For all these reasons I would uphold the appeal and decline to
confirm the declaration of invalidity made by the Labour Court.
For the
Applicant:
C Nel instructed by Macgregor Erasmus Attorneys.
For the First and Second
Respondent:
J Peter SC and K Nondwangu instructed
by Mncedisi Ndlovu &
Sedumedi Inc.
For the Third
Respondent:
T Ngcukaitobi and R Tulk instructed by the State Attorney, Pretoria.
[1]
Section 167(5) of the Constitution provides:
“The
Constitutional Court makes the final decision whether an Act of
Parliament, a provincial Act or conduct of the President
is
constitutional, and must confirm any order of invalidity made by the
Supreme Court of Appeal, a High Court, or a court of
a similar
status, before that order has any force.”
[2]
In terms of section 172(2)(d) of the Constitution—
“[a]ny person or organ of state
with a sufficient interest may appeal, or apply, directly to the
Constitutional Court to
confirm or vary an order of constitutional
invalidity by a court in terms of this subsection.”
[3]
103 of 1994. In relevant part, section 38 reads as follows:
“(1)
(a) If
an incorrect salary,
salary level, salary scale or reward is awarded
to an employee, the relevant executive authority shall correct it
with effect
from the date on which it commenced.
(b)
Paragraph (a) shall apply notwithstanding the fact that the employee
concerned was unaware that an error had been made in the case where
the correction amounts to a reduction of his or her salary.
(2)
If an employee contemplated in subsection (1) has in respect of
his
or her salary, including any portion of any allowance or other
remuneration or any other benefit calculated on his or her
basic
salary or salary scale or awarded to him or her by reason of his or
her basic salary—
(a)
been underpaid, an amount equal to the amount of the underpayment
shall be paid to him or her, and that other benefit which he or she
did not receive, shall be awarded to him or her as from a
current
date; or
(b)
been overpaid or received any such other benefit not due to him
or
her—
(i)
an amount equal to the amount of the overpayment shall be
recovered
from him or her by way of the deduction from his or her salary of
such instalments as the relevant accounting officer
may determine if
he or she is in the service of the State, or, if he or she is not so
in service, by way of deduction from any
moneys owing to him or her
by the State, or by way of legal proceedings, or partly in the
former manner and partly in the latter
manner;
(ii)
that other benefit shall be discontinued or withdrawn as from a
current date, but the employee concerned shall have the right
to be compensated by the State for any patrimonial loss which
he or
she has suffered or will suffer as a result of that discontinuation
or withdrawal.”
[4]
The Finance MEC and the Finance Minister did not file submissions in
this Court. The Department of Public Service and
Administration, not a party in these proceedings, filed papers
allegedly on behalf of the Minister of Public Service without a
confirmatory affidavit by that Minister.
[5]
Concerning the impugned provision section 38(2)(b)(i), read with the
relevant provisions of the Public Finance Management Act
1 of 1999
(PFMA) and the Treasury Regulations 2005 promulgated and published
in the Government Gazette 27388 on 15 March 2005
(Treasury
Regulations).
[6]
Clause 7 reads:
“7.1
Translation from the existing dispensation to appropriate salary
scales attached
to the OSD based on the principle that no serving
employee’s salary positions (notch or package) will be less
favourable
with the implementation of the revised salary and career
progression dispensation.
7.2
The translation to the new dispensation provided for the recognition
of relevant experience of serving employees.”
[7]
Public Servants Association of South Africa obo Obogu v Head of
Department: Department of Health Gauteng
[2016] ZALCJHB 544
(Labour Court judgment) at para 5. For a detailed description
of the email exchange between Ms Ubogu
and the Department in this
regard refer to paras 5.8-5.11 of the Labour Court judgment.
[8]
The full terms of the rule
nisi
read as follows:
“(1)
A rule
nisi
do hereby issue, calling upon the Respondents to
show cause, if any, to this Court on 1
st
day December
2016 at 10h00, or so soon thereafter as the matter may be heard, why
an order should not be granted in the following
terms;
1.1
It is declared that all amounts allegedly
overpaid to the Applicant
by the First and Second Respondent/Department of Health: Gauteng
more than three years prior the institution
of any legal proceedings
against the Applicant by the First and Second Respondents have
become prescribed and accordingly are
irrecoverable pursuant to the
provisions of section 38(1) and (2) of the Public Service Act
(Proclamation 103 of 1994), or at
all;
1.2
It is declared that the unilateral
deduction by the First and Second
Respondents of monthly instalments from the Applicant’s salary
in order to recover amounts
allegedly erroneously overpaid to the
Applicant during period 2010 to 2016 without following a fair
process and absent an agreement
with the Applicant, alternatively in
terms of a judgment of a competent court, is
ultra vires
the
provisions of section 38(2)(b)(i) of the Public Service Act
(Proclamation 103 of 1994) read together with
sections 3(3)
and
38
(1)(c)(o) of the
Public Finance Management Act 1 of 1999
, read
together with Regulation 12 of the Treasury Regulations 2005 and the
National Treasury Instructions issued in May 2014
regarding
unauthorised, irregular and fruitless and wasteful expenditure;
1.3
In the alternative to paragraph 1.2
above, it is declared that
section 38(2)(b)(i) of the Public Service Act (Proclamation 103 of
1994) is unconstitutional as presently
formulated, and accordingly
falls to be interpreted in a manner which conforms with the
provisions of the Constitution of the
Republic of South Africa Act
108 of 1996 in particular 9, 23(1), 25(1) and 34 thereof, to be read
as follows:
‘
(b)
been over paid or received any such other benefit not due to him or
her—
(i)
an amount equal to the amount of such overpayment shall be
recovered from him or her by way of deduction from his or her
salary of such instalments as the relevant accounting officer and
employee, if he or she is in the service of the State, may agree,
and failing agreement by way of legal proceedings, or if he or she
is not so in service of the State, by way of deduction from
any
money owing to him or her by the State as the relevant accounting
officer and former employee may agree, and failing agreement
by way
of legal proceedings, or partly in the former manner and partly in
the latter.’
1.4
In the alternative to paragraph 1.3
above it is declared that
section 38(2)(b)(i) of the Public Service Act (Proclamation 103 of
1993) is unconstitutional and is
struck down.
1.5
The First and Second Respondents (together
with the Third to Fifth
Respondents in the event of their unsuccessful opposition to the
application), are directed to pay the
costs of the application,
jointly and severally;
(2)
Pending the outcome of the application the First and Second
Respondents
be and hereby interdicted from making any further
deductions from Olufunmilayi Itunu Ubogu’s
remuneration (including
but not limited to her monthly salary,
annual bonus or performance awards) in recovery of the amounts
erroneously overpaid to
her.”
[9]
Labour Court judgment above n 7 at paras 14 and 18.
[10]
75 of 1997. Section 34(1) reads as follows:
“An employer
may not make any deductions from an employee’s remuneration
unless—
(a)
subject to subsection (2), the
employee in writing agrees to the
deduction in respect of a debt specified in the agreement; or
(b)
the deduction is required or permitted
in terms of a law, collective
agreement, court order or arbitration award.”
[11]
Section 34(1)(b).
[12]
Labour Court judgment above n 7 at para 23.
[13]
Id at para 26.
[14]
Id at para 27.
[15]
Id at para 21.
[16]
Id at para 28.
[17]
Id at para 28.
[18]
Khumalo v MEC for Education, KwaZulu-Natal
[2013] ZACC 49
;
2014 (5) SA 579
(CC);
2014 (3) BCLR 333
(CC)
.
[19]
Chirwa v Transnet Ltd
[2007] ZACC 23; 2008 (4) SA 367 (CC);
2008 (3) BCLR 251 (CC).
[20]
Gcaba v Minister for Safety and Security
[2009] ZACC 26; 2010
(1) SA 238 (CC); 2010 (1) BCLR 35 (CC).
[21]
This was raised in relation to the constitutional
protection against arbitrary deprivation.
[22]
The Minister of Public Service did not file an answering affidavit
but filed written submissions. The Department of Public
Service and Administration (DPSA) however, filed an answering
affidavit deposed to by the Director-General (DG) of the DPSA,
alleging that he is authorised to depose to the affidavit. He
stated that both the Minister of Public Service and the DPSA
oppose
the confirmation application. The DG alleged that he was
authorised to lodge the application for intervention by
the DPSA as
it was not cited as a party to the proceeding in the Labour Court.
This application was brought at the eleventh
hour before the hearing
of the application. A confirmatory affidavit by the Minister
of Public Service was not filed.
In my view, the answering
affidavit was not properly before this Court.
[23]
My Vote Counts NPC v Speaker of the National Assembly
[2015]
ZACC 31
;
2016 (1) SA 132
(CC);
2015 (12) BCLR 1407
(CC) at para 53.
[24]
The third respondent also refers to
National Coalition for Gay
and Lesbian Equality v Minister of Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National Coalition
);
see also
Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and
Development Appeal Tribunal
[2016] ZACC 2
;
2016 (3) SA 160
(CC);
2016 (4) BCLR 469
(CC) (
Tronox
); and
Van Rooyen v the
State (General Council of the Bar of South Africa intervening)
[2002] ZACC 8; 2002 (5) SA 246 (CC); 2002 (8) BCLR 810 (CC).
[25]
Section 36 of the Constitution provides:
“(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking into account all
relevant factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the
limitation;
(c)
the nature and extent of the
limitation;
(d)
the relation between the limitation
and its purpose; and
(e)
less restrictive means to achieve
the purpose.
(2)
Except as provided in subsection (1) or in any other provision of
the Constitution, no law may limit any right entrenched in the Bill
of Rights.”
[26]
66 of 1995.
[27]
Section 166(e) of the Constitution.
[28]
Section 157(2) of the LRA. See also
Fredericks
v MEC
for Education and Training, Eastern Cape
[2001] ZACC 6
;
2002 (2)
SA 693
(CC);
2002 (2) BCLR 113
(CC) at paras 36-8.
[29]
It is not insignificant that the dispute had been referred to the
Public Health and Social Development Sectoral Bargaining Council
before the state withheld part of her salary, hence the review of
the decision in the Labour Court, challenging, amongst
other
things, the lawfulness of the deductions on the basis that there was
no overpayment and the constitutionality of section
38(2)(b)(i) of
the Act.
[30]
See [1].
[31]
10 of 2013 as amended by the Judicial Matters Amendment Act 8 of
2017.
[32]
Minister of Health v New Clicks South Africa
(
Pty
)
Ltd
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) (
New
Clicks
) at para 232.
[33]
Cool Ideas 1186 CC v Hubbard
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) (
Cool Ideas
) at para 28.
[34]
Phillips v National Director of Public Prosecutions
[2005]
ZACC 15; 2006 (1) SA 505 (CC); 2006 (2) BCLR 274 (CC).
[35]
Id at para 43.
[36]
SATAWU v Garvas
[2012] ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8)
BCLR 840
(CC) (
Garvas
) at paras 113 4.
[37]
See in this regard the Labour Court judgment above n 7 at para 4.
[38]
Id at para 12.8.
[39]
Id at paras 14-5. See also paras 22-3 and 26.
[40]
Chief Lesapo v North West Agricultural Bank
[1999] ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at para 11.
[41]
Section 1(c) of the Constitution provides:
“The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
. . .
Supremacy of the
constitution and the rule of law.”
[42]
Labour Court judgment above n 7 at para 26.
[43]
Id at para 16. See also paras 19-20 and 26.
[44]
The order is set out in full at [16].
[45]
See in this regard the Labour Court judgment above n 7 at para 26.
[46]
National Coalition
above n 24 at para 24.
[47]
Garvas
above n 36 at para 114.
[48]
See
Tronox
above n 24 at para 38.
[49]
Section 172(2) of the Constitution is outlined at [33].
[50]
Section 151(2) is outlined at [32].
[51]
Section 167(5) is set out in n 1.
[52]
Labour Court judgment above n 7 at paras 26-7. The order is
set out in full at [16].
[53]
Section 1(c) of the Constitution above n 41.
[54]
Section 2 of the Constitution.
[55]
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007
(7) BCLR 691
(CC) at paras 28 and 33.
[56]
Stopforth Swanepoel & Brewis Inc v Royal Anthem (Pty) Ltd
[2014] ZACC 26
;
2015 (2) SA 539
(CC);
2014 (12) BCLR 1465
(CC)
(
Stopforth
) at para 19 including fn 8. See also
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a
Metrobus
[2016] ZACC 49
; (2017) 38 ILJ 527 (CC);
2017 (4) BCLR
473
(CC) at para 23.
[57]
De Lange v Smuts N.O.
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 131. This passage was quoted
with approval in
Stopforth
above n 56 at para 19.
[58]
“Employee” is defined, in section 1(a) of the BCEA, as:
“[A]ny
person, excluding an independent contractor, who works for another
person or for the State and who receives, or is
entitled to receive,
any remuneration.”
[59]
Chief Lesapo
above n 40 at para 11.
[60]
Id at para 12. For instance, when there is an immediate
dispossession of a thief of stolen goods when he is caught where
self-help concerns
contra
flagrante delicto
(in the
act of committing an offense).
[61]
Myathaza
above n 59 at para 23.
[62]
Section 31(1) provides:
“
(a)
(i)
If any remuneration,
allowance or other reward (other than
remuneration contemplated in section 38(1) or (3)), is received by
an employee in connection
with the performance of his or her work in
the public service otherwise than in accordance with this Act or a
determination by
or directive of the Minister, or is received
contrary to section 30, that employee shall, subject to subparagraph
(iii), pay
into revenue—
(aa) an
amount equal to the amount of any such remuneration, allowance or
reward;
or
(bb)
if it does not consist of money, the value thereof as determined by
the head
of the department in which he or she was employed, at the
time of the receipt thereof.
(ii)
If the employee fails to so pay into revenue the amount or value,
the said head of the department
shall recover it from him of her
by way of legal proceedings
and pay it into revenue.
(iii)
The employee concerned may appeal against the determination of the
head of department to the relevant executive authority.
(iv)
The accounting officer of the relevant department may approve that
the employee concerned retains the whole or a portion of the said
remuneration, allowance or reward.
(b)
If—
(i)
in the opinion of the head of department mentioned in paragraph
(a)
an employee has received any remuneration, allowance or other reward
contemplated in that paragraph; and
(ii)
it is still in his or her possession or under his or her control
or
in the possession or under the control of any other person on his or
her behalf, or, if it is money, has been deposited in
any bank as
defined in section 1(1) of the Banks Act, 1990 (Act No 94 of 1990),
or a mutual bank as defined
in section 1(1) of the Mutual Banks Act,
1993 (Act No. 124 of 1993), in his or her name or in the name of any
other
person on his or her behalf,
that head of department may in writing require that
employee or that other person or that financial institution not to
dispose
thereof, or if it is money, not to dispose of a
corresponding sum of money, as the case may be,
pending
the outcome of any legal steps for the recovery
of that remuneration, allowance or reward or the value thereof.”
[63]
Schierhout v Union Government (Minister of Justice)
1926 AD
286
at 289.
[64]
Harris v Tancred
1960 (1) SA 839
(C) at 843H.
[65]
Western Cape Education Department v General Public Service
Sectoral Bargaining Council
[2014] ZALAC 34
;
[2014] 10 BLLR 987
(LAC) at para 29.
[66]
See
Barkhuizen
above n 55 at para 73.
[67]
Garvas
above n 36 at para 113.
[68]
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.
[69]
Above n 8 at 2.
[70]
Id at 1.3.
[71]
See above n 10.
[72]
Section 166 of the Constitution provides:
“(a)
the Constitutional Court;
(b)
the Supreme Court of Appeal;
(c)
the High Courts, including any high court of appeal that may be
established by an Act of Parliament to hear appeals from High
Courts;
(d)
the Magistrates' Courts; and
(e)
any other court established or recognised in terms of an Act of
Parliament, including any court of a status similar to either the
High Courts or the Magistrates' Courts.”
[73]
Section 167 of the Constitution provides:
“(1)
The Constitutional Court consists of the Chief Justice of South
Africa,
the Deputy Chief Justice and nine other judges.
(2)
A matter before the Constitutional Court must be heard by at least
eight judges.
(3)
The Constitutional Court—
(a)
is the highest court of the Republic; and
(b)
may decide—
(i)
constitutional matters; and
(ii)
any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point of law of
general public importance which ought to be considered by that
Court; and
(c)
makes the final decision whether a matter is within its
jurisdiction.”
[74]
Section 168 of the Constitution provides:
“(1)
The Supreme Court of Appeal consists of a President, a Deputy
President
and the number of judges of appeal determined in terms of
an Act of Parliament.
(2)
A matter before the Supreme Court of Appeal must be decided by the
number of judges determined in terms of an Act of Parliament.
(3)
(a)
The Supreme Court of Appeal may decide appeals in any matter arising
from the High Court of South Africa or a court of a status similar
to the High Court of South Africa, except in respect of labour
or
competition matters to such extent as may be determined by an Act of
Parliament.
(b)
The Supreme Court of Appeal may decide only—
(i)
appeals;
(ii)
issues connected with appeals; and
(iii)
any other matter that may be referred to it in circumstances defined
by an Act of Parliament.”
[75]
Fredericks
above n 28 at para 12.
[76]
Section 169(2)(a)(ii) of the Constitution.
[77]
Mbayeka v MEC for Welfare, Eastern Cape
[2001] All SA 567
(Tk).
[78]
Section 98 of the interim Constitution is titled “Constitutional
Court and its jurisdiction”, the relevant section
provides:
“(2)
The Constitutional Court shall have jurisdiction in the Republic as
the court of final instance over all matters relating to the
interpretation, protection and enforcement of the provisions of the
Constitution, including—
. . .
(c)
any inquiry into the constitutionality of any law, including an
Act
of Parliament, irrespective of whether such law was passed or made
before or after the commencement of this Constitution;
. . .
(3)
The Constitutional Court shall be the only court having jurisdiction
over a matter referred to in subsection (2), save where otherwise
provided in section 101(3) and 6.”
[79]
Naptosa v Minister of Education, Western Cape
2001 (2) SA 112
(C);
Runeli v Minister of Home Affairs
(2000) (2) SA 314
(Tk);
Mgijima v Eastern Cape Appropriate Technology Unit
2000
(2) SA 291
(Tk); and
Independent Municipal and Allied Trade Union
v Northern Pretoria Metropolitan Substructure
1999 (2) SA 234
(T).
[80]
Fredericks
above n 28 at paras 38-44.
[81]
Id at para 43.
[82]
Zantsi v Council of State, Ciskei and Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC). See also
section 101(3)(c) of the interim Constitution.
[83]
Section 102(8) of the interim Constitution.
[84]
Zantsi
above n 82 at paras 29-32.