Chirwa v Transnet Limited and Others (CCT 78/06) [2007] ZACC 23 (28 November 2007)

Case CCT 78/06

[2007] ZACC 23

PETRONELLA NELLIE NELISIWE CHIRWA Applicant

versus

TRANSNET LIMITED First Respondent

TRANSNET PENSION FUND Second Respondent

PATRICK IAN SMITH NO Third Respondent

Heard on : 13 March 2007

Decided on : 28 November 2007

JUDGMENT

SKWEYIYA J:

Introduction

[1] This case comes before us by way of an application for leave to appeal against the decision of the Supreme Court of Appeal.[1] The applicant further seeks condonation for non-compliance with the rules of this Court both in relation to prescribed time frames and the manner in which documents are to be lodged with this Court.

[2] The matter concerns the dismissal of the applicant, a public sector employee, by Transnet Pension Fund, a business unit of Transnet Limited. The applicant referred the dispute relating to her dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA) as provided for in section 191(1)(a)(ii) of the Labour Relations Act 66 of 1995 (LRA).[2] Conciliation failed to resolve the matter but the applicant did not pursue the matter further under the provisions of the LRA. Instead, she approached the Johannesburg High Court where she sought the review and correction, or setting aside, of the decision of the third respondent to dismiss her from the employ of the first respondent.

Parties to the litigation

[3] The applicant is Ms Petronella Nellie Nelisiwe Chirwa. She joined the staff of Transnet in May 1999 in the capacity of Human Resources Manager. In December 2000 she was promoted to the rank of Human Resources Executive Manager and was transferred to the Transnet Pension Fund Business Unit.

[4] The first respondent is Transnet Limited (Transnet), formed and incorporated under the provisions of the Legal Succession to the South African Transport Services Act 9 of 1989. It is a wholly state-owned public company with a number of business divisions.

[5] The second respondent is the Transnet Pension Fund (the Fund), which was established in terms of the Transnet Pension Fund Act 62 of 1990. The Fund is a business unit of Transnet.

[6] The third respondent, Mr Patrick Ian Smith, is employed as the Chief Executive Officer of the Transnet Pension Fund Business Unit and is also the Principal Officer of the Fund. He is cited as a party to this matter because he took the decision to dismiss Ms Chirwa.

Factual background

[7] A detailed factual background is necessary for the proper perspective of this case. Ms Chirwa assumed her duties as the Human Resources Executive Manager with Mr Smith as her supervisor in January 2001. During October 2002 the relationship between the two soured.

[8] On 23 and 24 October 2002 she was subject to a disciplinary enquiry initiated by Mr Smith and chaired by Mr Barry Jammy, who was appointed by Transnet to investigate the allegation of misconduct lodged against Ms Chirwa. The enquiry specifically concerned allegations that Ms Chirwa failed to exercise her managerial powers and to perform her managerial duties with reasonable care and skill, in that she did not comply with the instruction to fill the vacancy of a management accountant in the Property Asset Management Department. On the recommendation of Mr Jammy, she was issued with a written warning on 11 November 2002 subsequent to the completion of the disciplinary hearing.

[9] Ms Chirwa sought to appeal against the decision to issue her with a written warning. In a letter dated 14 November 2002, Mr Smith responded to her and explained that at the time there was no functional appellate structure within Transnet, because the proposed disciplinary code for the management of Transnet had not been ratified by the Executive Committee of Transnet. Mr Smith advised Ms Chirwa to challenge the written notice under the provisions of section 186(2)(b) of the LRA.[3] It would appear that Ms Chirwa did not follow that advice but instead lodged a formal written grievance against Mr Smith in which she narrated the acrimonious nature of their relationship.

[10] By letter dated 15 November 2002, Mr Smith, in his official capacity, invited Ms Chirwa to an enquiry on 22 November 2002 to respond to allegations of inadequate performance, incompetence and poor employee relations; the outcome of which would be a decision regarding her future at the Fund. The letter catalogues in detail instances of poor performance, incompetence and poor employee relations spanning a fairly lengthy period. The letter also contains a record of meetings that were held to plan the improvement of Ms Chirwa’s performance.

[11] Ms Chirwa refused to participate in the 22 November 2002 enquiry on the grounds that she objected to Mr Smith being “the complainant, witness and presiding officer at the same time.” Mr Smith proceeded with the enquiry and concluded that Ms Chirwa should be dismissed.

[12] In the letter of her dismissal dated 22 November 2002, Ms Chirwa was advised that in the event of her disputing her dismissal she was entitled to exercise her rights as provided for by the LRA. The letter was signed by Mr Smith in his capacity as the Chief Executive Officer of the Fund.

[13] Following her dismissal, she referred the dispute to the CCMA by alleging an unfair dismissal.[4] The CCMA was unable to resolve the dispute within 30 days. Accordingly, it issued a certificate to that effect and recommended arbitration in accordance with section 191 of the LRA. Instead of proceeding to arbitration, Ms Chirwa approached the High Court where she sought an order to (a) set aside the disciplinary proceedings that resulted in her dismissal and (b) reinstate her in her former position.

[14] Her complaint in the High Court was that the disciplinary proceedings were fundamentally flawed on two grounds. The first was that Mr Smith, her main accuser, who was also her supervisor, acted as a complainant, witness and a presiding officer during the disciplinary enquiry. It is not disputed that some 11 days prior to the disciplinary enquiry, the applicant had received a written warning in disciplinary proceedings initiated by Mr Smith, her accuser. Eight days before the disciplinary enquiry, which is the subject matter of these proceedings, the applicant had lodged a formal grievance against Mr Smith.

[15] The second ground was that she had not been afforded the opportunity to obtain legal representation. She alleged that the process of dismissing an employee for poor work performance is by its very nature complex. In support of this contention, Ms Chirwa relied upon the provisions of item 9 of the Code of Good Practice: Dismissal (the Code) contained in Schedule 8 to the LRA, alleging that:

“It involves, firstly, the setting of the requisite performance standard and, secondly, a determination of whether the employee concerned did meet the required performance standard. If the employee concerned did not meet the required performance standard consideration must be given to whether or not—

(a) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(b) the employee was given a fair opportunity to meet the required performance standard; and

[16] It is worth noting here that the passage cited above repeats almost verbatim the requirements set out in item 9 of the Code which provides that:

“Any person determining whether a dismissal for poor work performance is unfair should consider—

(a) whether or not the employee failed to meet a performance standard; and

(b) if the employee did not meet a required performance standard whether or not—

(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

(ii) the employee was given a fair opportunity to meet the required performance standard; and

(iii) dismissal was an appropriate sanction for not meeting the required performance standard.”

[17] After setting out the relevant facts, Ms Chirwa crucially concluded that:

“The aforegoing facts amply demonstrate that the 3^rd respondent failed to comply with the mandatory provisions of items 8 and 9 of Schedule 8 to the Labour Relations Act, 1995 (Act 66 of 1995) (the LRA). That being so, the decision at issue is reviewable in terms of sections 6(2)(b) and 6(2)(f)(i) of the PAJA.”[5]

[18] It is therefore clear that Ms Chirwa’s claim is based on the provisions of section 188 of the LRA read with items 8 and 9 of the Code. Section 188 of the LRA provides:

“(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove—

(a) that the reason for dismissal is a fair reason—

(i) related to the employee’s conduct or capacity; or

(ii) based on the employer’s operational requirements; and

(b) that the dismissal was effected in accordance with a fair procedure.

(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.”

[19] The explanation offered by Ms Chirwa for approaching the High Court instead of the Labour Court was that she had two causes of action available to her; one under the LRA and the other flowing from the Bill of Rights read with the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). She further explained that in the light of these options she had decided “for practical considerations” to approach the High Court in the exercise of her constitutional right of access to court. Consistent with this attitude, in this Court as in the court below, it was contended on her behalf that the High Court had concurrent jurisdiction with the Labour Court in respect of her claim.

The questions presented

[20] The central question in this matter is whether Parliament conferred the jurisdiction to determine the applicant’s case upon the Labour Court and the other mechanisms established by the LRA, in such a manner that it either expressly or by necessary implication excluded the jurisdiction of the High Court.

The decision of the High Court

[21] The High Court[6] assumed that it had jurisdiction in the matter, but did not reach this conclusion based on the alleged violation of the provisions of PAJA as pleaded by the applicant. Instead, the High Court decided the matter on the basis of common law rules of natural justice, and concluded that the rules of natural justice had been breached. This is based on the decision of Administrator, Transvaal, and Others v Zenzile and Others,[7] in which it was held that dismissal of a public sector employee was not simply the termination of a contractual relationship but the exercise of a public power which required the employer to apply the rules of natural justice.

[22] The court therefore declared the applicant’s dismissal a nullity and made an order of reinstatement on terms and conditions no less favourable than those that operated at the time of her dismissal on 22 November 2002. However, it directed that its order should operate retrospectively for a period of nine months from the date of its order on 25 February 2004.

[23] To the extent that the High Court did not consider Ms Chirwa’s claim in the context of PAJA, it erred. The cause of action of what is claimed to be an administrative act now arises from PAJA, and not from the common law as it would have in the past.[8]

[24] With the leave of the High Court, Transnet appealed to the Supreme Court of Appeal where it raised the following two issues for consideration by that Court:

(a) Whether Ms Chirwa’s dismissal was a matter which fell within the exclusive jurisdiction of the Labour Court in terms of section 157(1) of the LRA.[9]

(b) Whether the dismissal constituted administrative action as defined in PAJA.

The decision of the Supreme Court of Appeal

[25] Mthiyane JA, with Jafta JA concurring, held that the High Court had concurrent jurisdiction with the Labour Court in relation to the applicant’s claim. He reasoned that if an employment dispute raises an alleged violation of a constitutional right, a litigant is not confined to the remedy provided under the LRA and that the jurisdiction of the High Court is therefore not ousted. In support of this reasoning, he relied upon the decision of this Court in Fredericks and Others v MEC for Education and Training, Eastern Cape, and Others.[10] In that decision, this Court held that the Labour Courts are not afforded general jurisdiction in employment matters and that the High Court’s jurisdiction is not ousted by the provisions of section 157(1) simply because “a dispute is one that falls within the overall sphere of employment relations.”[11]

[26] Apart from Fredericks, Mthiyane JA relied upon certain decisions of the Supreme Court of Appeal, notably Fedlife Assurance Ltd v Wolfaardt[12] and United National Public Servants Association of South Africa v Digomo NO & others.[13] In Fedlife, the majority of the Supreme Court of Appeal held that Chapter 8 of the LRA was not exhaustive of the rights and remedies that accrue to an employee upon the termination of employment.[14] Accordingly, the right of an employee to enforce a common law contract was held not to have been abrogated by the LRA.[15] Digomo is substantially to the same effect. There it was held that the remedies that the LRA provides for conduct which constitutes unfair labour practice are not exhaustive of the remedies that may be available to employees in the course of the employment relationship.[16] The conduct of the employer might constitute both an unfair labour practice, for which the LRA provides a specific remedy, and may also give rise to other rights of action.[17]

[27] Apart from the above-mentioned decisions of the Supreme Court of Appeal, Mthiyane JA also relied upon the High Court decision of Mbayeka and Another v MEC for Welfare, Eastern Cape.[18] In that case public sector employees had challenged their suspension from duty without pay as being invalid and unconstitutional, and sought reinstatement in the High Court. The employer resisted the application on the basis that the High Court had no jurisdiction in the matter as the matter fell within the exclusive jurisdiction of the Labour Court under section 157(1) of the LRA. In rejecting this argument, the High Court held that on a proper interpretation of section 157(2) of the LRA:

“. . . the Labour Court will never enjoy exclusive constitutional jurisdiction even in matters where the cause of action is confined to an alleged violation of the right to fair labour practices simply because that is a constitutional right in terms of section 23 of the Constitution.”[19]

[28] However, Mthiyane JA concluded that the applicant had to fail because she had not established that her dismissal constituted administrative action as defined in section 1 of PAJA. He reasoned that from the papers that it was clear that in terminating the applicant’s contract of employment, Transnet was not exercising public power or performing a public function in terms of any legislation. The fact that Transnet, an organ of state, derives its powers to enter into a contract from a statute does not mean that its right to terminate the contract is also derived from public power.

[29] In a concurrence with the order of Mthiyane JA, Conradie JA accepted, without deciding, that the dismissal of the applicant constituted administrative action. However, he found that since the advent of the LRA, dismissals in the public domain are no longer to be dealt with as administrative acts. He reasoned that the legislative intent which is evident from the LRA is to subject an unfair dismissal dispute of any employee falling within its scope to the dispute resolution mechanisms established by the Act. In addition, he held that even if the applicant had a cause of action under PAJA, she was nevertheless limited to relief under the LRA. He reasoned that the provisions of section 158(1)(h) of the LRA confer a jurisdiction on the Labour Court to review an administrative act performed by the State as an employer.[20]

[30] In addition, Conradie JA relied upon the High Court decisions of Jones & another v Telkom SA Ltd & others,[21] Mcosini v Mancotywa & another[22] and Mgijima v Eastern Cape Appropriate Technology Unit and Another.[23] These cases involved attempts by employees to bypass the Labour Court by grounding a cause of action on a violation of fundamental rights in the Constitution. In these cases it was held that the fact that the action or actions of an employer may violate more than one of the employee’s fundamental rights does not alter the nature of the cause of action; which was found to be a labour matter. Conradie JA accordingly held that a High Court had no jurisdiction as the claims in issue fell within the exclusive jurisdiction of the Labour Court.

[31] Cameron JA wrote a dissenting judgment in which Mpati DP concurred. He made the following findings.

[32] Firstly, Cameron JA upheld the jurisdiction of the High Court in matters like that of the applicant, holding that where the same conduct gives rise to different causes of action, employees may choose the forum and the legislation under which they wish to pursue their actions. Cameron JA noted that neither the LRA nor PAJA expressly deprives the High Court of jurisdiction to adjudicate disputes arising from public sector employment. In the case of Ms Chirwa, he states the position as follows:

“When Transnet dismissed Ms Chirwa, its action trenched on two constitutional rights: her right to fair labour practices, and her right to just administrative action. The Legislature has augmented the right to fair labour practices by affording employees an elaborate set of remedies in the LRA. When conciliation under the LRA failed, she could have subjected her unfair dismissal claim to arbitration under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA) (LRA sections 133-150). She chose not to. Instead, she launched this application for relief in express reliance on PAJA, asserting that two causes of action arose from her dismissal – one under the LRA; the other under the Constitution and PAJA. That assertion was in my view right.”[24] (Footnotes omitted.)

He held that the existence of the LRA does not prevent public sector employees from pressing claims under PAJA and concluded that the fact that an employee has remedies under the LRA does not preclude her or him from approaching the ordinary courts (the High Court in Ms Chirwa’s case) in vindication of her PAJA rights.

[33] Secondly, on the question of whether public sector dismissals constitute administrative action, Cameron JA held that they could be classified as such. In the case of Ms Chirwa, he found that even if her employment relationship with Transnet was not regulated by a particular statutory provision, the fact was that Transnet is a public entity, created by statute. That being so, according to Cameron JA, “[i]ts every act derives from its public, statutory character, including the dismissal at issue here.”[25]

[34] Thirdly, he agreed with the High Court that Ms Chirwa was entitled to relief. He however, took a view different from that of the High Court on the form of such relief. The High Court had declared Ms Chirwa’s dismissal to be a nullity and had ordered her reinstatement to her former position with the Fund with retrospective effect. Cameron JA, on the other hand, preferred that the matter be remitted to Transnet so that it could hold a fresh and proper hearing.

[35] In effect, the judgment of the Supreme Court of Appeal makes no definitive finding as to whether conduct by the State and its organs as an employer should be reviewable under PAJA, as the Court was split on this issue. Mthiyane JA held that the termination of Ms Chirwa’s contract of employment with Transnet did not amount to exercise of public power and thus this excludes the applicability of PAJA; whereas Cameron JA agreed that Ms Chirwa was at liberty to frame the cause of action under PAJA and should have been afforded relief in terms of its provisions.

[36] The separate judgment of Conradie JA takes the matter no further. Although he accepted that Transnet’s conduct amounted to administrative action, he was of the view that the LRA deprived Ms Chirwa of framing her cause of action under PAJA. He concluded that a complaint which rises from a procedurally unfair dismissal for poor work performance is a “quintessential LRA matter, [for which] relief under PAJA is not intended to be available.”[26] I agree with this conclusion.

[37] Cameron JA first determined whether the conduct by Transnet (through the Fund) amounts to administrative action, and only thereafter did he turn to the question of jurisdiction. His finding in this regard is that since the Labour Courts are not afforded general jurisdiction in employment matters by the LRA, the jurisdiction of the High Court “is not ousted simply because a dispute falls within the sphere of employment relations”.[27] It appears that for Cameron JA, Zenzile remains as relevant today as it was before the dawn of our new constitutional era.

[38] The reasoning employed by the Appellate Division in Zenzile cannot be faulted save to point out that the judgment was delivered in a particular context whereby state employees were not able to access processes aligned with natural justice principles in the forum of the old Labour Relations Act[28] in instances concerning employment disputes. This, of course, has changed since the adoption of the present Constitution and the LRA. Section 185 of the LRA confers the rights not to be unfairly dismissed or subjected to unfair labour practices, both of which extend to employees of the State, including the employees of Transnet.

[39] The decisions in Zenzile and Sibiya[29] were made in circumstances where public sector employees were not accorded such rights in terms of the labour legislation applicable at the time. In the absence of such rights being afforded to them there was, in my view, a judicial duty on the judicial officers to extend protection to state employees. As the previous paragraph makes clear, the LRA has changed the content of that duty.

[40] State employees not only have all the benefits of the protection of the LRA, but also have the right to approach the civil courts for relief under PAJA and are thus in a preferred position. Although one should be loathe depriving a litigant of existing rights where she or he is accorded more than one right by the Constitution or any other enabling legislation, it is unsatisfactory that the High Court should be approached to decide review applications in terms of PAJA where the LRA already regulates the same issue to be reviewed. Cameron JA himself cautions that—

“[t]he employee’s insistence on approaching the ordinary courts – when the LRA afforded her ample remedies, including retrospective reinstatement and compensation if her employer failed to discharge the burden of proving that her dismissal was both procedurally and substantively fair – is not without consequence: the ordinary courts must be careful in employment-related cases brought by public employees not to usurp the labour courts’ remedial powers, and their special skills and expertise.”[30]

[41] It is my view that the existence of a purpose-built employment framework in the form of the LRA and associated legislation infers that labour processes and forums should take precedence over non-purpose-built processes and forums in situations involving employment-related matters. At the least, litigation in terms of the LRA should be seen as the more appropriate route to pursue. Where an alternative cause of action can be sustained in matters arising out of an employment relationship, in which the employee alleges unfair dismissal or an unfair labour practice by the employer, it is in the first instance through the mechanisms established by the LRA that the employee should pursue her or his claims.

[42] The LRA includes the principles of natural justice. The dual fairness requirement is one example; a dismissal needs to be substantively and procedurally fair. By doing so, the LRA guarantees that an employee will be protected by the rules of natural justice and that the procedural fairness requirements will satisfy the audi alterum partum principle and the rule against bias. If the process does not, the employee will be able to challenge her or his dismissal, and will be able to do so under the provisions and structures of the LRA. Similarly, an employee is protected from arbitrary and irrational decisions, through substantive fairness requirements and a right not to be subjected to unfair labour practices.

[43] Judicial review of an administrative decision can only result in an administrative decision being set aside. This does not prevent an employer from restarting a disciplinary process; neither does it prevent an employee from being dismissed after a fresh hearing that cures the original defect. On the other hand, the forums provided for by the LRA allow for a variety of purpose-built, employment-focused relief; none of which is available under the provisions of PAJA.

[44] This line of reasoning has been endorsed by Conradie JA. I can do no better than to repeat his conclusion:

“If an application for the review of administrative action succeeds, the applicant is usually entitled to no more than a setting aside of the impugned decision and its remittal to the decision-maker to apply his mind afresh. Except where unreasonableness is an issue the reviewing court does not concern itself with the substance of the applicant’s case and only in rare cases substitutes its decision for that of the decision-maker. The guiding principle is that the subject is entitled to a procedurally fair and lawful decision, not to a correct one. Under the LRA, the procedure to have a dismissal overturned or adjusted involves a rehearing with evidence by the parties and the substitution of a correct decision for an incorrect one. The scope for relief consequent upon such an order is extensive. It is quite unlike that afforded by an administrative law review.”[31] (Footnotes omitted.)

In this Court

[45] Ms Chirwa has approached this Court for leave to appeal against the majority judgment of the Supreme Court of Appeal. She also seeks condonation for the late filing of the documents and the defective manner in which they were lodged. There is no reason to refuse her condonation application as the non-compliance with the rules of this Court has not resulted in any apparent prejudice to the other parties to the application.

[46] The question of jurisdiction arises in this matter because dismissals of public sector employees appear to implicate not only labour rights but also those of administrative justice. This is at least what Ms Chirwa is asserting. The two rights are entrenched in two separate provisions in the Constitution,[32] each with its own aims and specialised legislation (the LRA and PAJA) that seeks to give effect to its own distinct objectives.[33] This was emphasised in South African Police Union & Another v National Commissioner of the South African Police Service & Another (SAPU):[34]

“[O]ur Constitution draws an explicit distinction between administrative action and labour practices as two distinct species of juridical acts, and subjects them to different forms of regulation, review and enforcement.”[35]

[47] The purpose of the administrative justice provisions is to bring about procedural fairness in dealings between the administration and members of the public.[36] The purpose of labour law as embodied in the LRA is to provide a comprehensive system of dispute resolution mechanisms, forums and remedies that are tailored to deal with all aspects of employment. It was envisaged as a one-stop shop for all labour-related disputes. The LRA provides for matters such as discrimination in the workplace as well as procedural fairness; with the view that even if a labour dispute implicates other rights, a litigant will be able to approach the LRA structures to resolve the disputes.

[48] The Explanatory Memorandum on the Labour Relations Bill (the Memorandum)^{^[37]} describes the LRA mechanisms as a product of an extensive process of negotiation between all the affected stakeholders.[38] One of the express aims of the Labour Relations Bill[39] was to address the “lack of an overall and integrated legislative framework for regulating labour relations”, which arose as a result of a multiplicity of laws governing different sectors, especially the private sector and the public sector.[40] Therefore, the object of the Bill was to eradicate the “inconsistency, unnecessary complexity, duplication of resources and jurisdictional confusion” caused by the multiplicity of laws by proposing a single statute that was to apply to the whole economy whilst accommodating the special features of its different sectors.[41]

[49] Section 210 of the LRA provides:

“If any conflict, relating to the matters dealt with in this Act, arises between this Act and the provisions of any other law save the Constitution or any Act expressly amending this Act, the provisions of this Act will prevail.”

[50] This section heralds the LRA as the pre-eminent legislation in labour matters that are dealt with by that Act. Only the Constitution itself or a statute that expressly amends the LRA can take precedence in application to such labour matters. When PAJA was promulgated, five years after the current LRA came into force, section 210 remained untouched. The legislature, aware of the implications of this provision in the LRA, enacted PAJA without altering section 210.[42] This is significant, in that it would appear that the legislature intended that PAJA should not detract from the pre-eminence of the LRA and its specialised labour disputes mechanisms.

[51] In the light of the aims of the LRA, the CCMA was proposed as a forum which “recognizes and actively promotes private procedures negotiated between the parties for the resolution of disputes and adopts a simple non-technical and non-jurisdictional approach to dispute resolution.”[43]

[52] In a similar vein, this Court in National Education Health and Allied Workers Union v University of Cape Town and Others (NEHAWU)[44] made the following finding about the specialised Labour Court structure created by the LRA:

“The LAC is a specialised court, which functions in a specialised area of law. The LAC and the Labour Court were established by Parliament specifically to administer the LRA. They are charged with the responsibility for overseeing the ongoing interpretation and application of the LRA and development of labour relations policy and precedent. Through their skills and experience, Judges of the LAC and the Labour Court accumulate the expertise which enables them to resolve labour disputes speedily.”[45]

[53] It is in this context that section 157 of the LRA and its consequences must be analysed. Section 157 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

(3) Any reference to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to the Labour Court when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act.

(4) (a) The Labour Court may refuse to determine any dispute, other than an appeal or review before the Court, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation.

(b) A certificate issued by a commissioner or a council stating that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation.

(5) Except as provided in section 158 (2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration.”

[54] The authorities that have attempted to grapple with this provision have come to conflicting interpretations. Keeping in mind the aim of the LRA to be a one-stop shop dispute resolution structure in the employment sphere, it is not difficult to see that the concurrent jurisdiction provided for in section 157(2) of the LRA is meant to extend the jurisdiction of the Labour Court to employment matters that implicate constitutional rights. However, this cannot be seen as derogating from the jurisdiction of the High Court in constitutional matters, assigned to it by section 169 of the Constitution, unless it can be shown that a particular matter falls into the exclusive jurisdiction of the Labour Court.[46]

Ms Chirwa’s submissions

[55] In this Court Ms Chirwa has persisted with her contention that the High Court had concurrent jurisdiction with the Labour Court in respect of her claim. She further contends that her dismissal as an employee of an organ of state amounts to an administrative act, as contemplated in the Constitution and in section 1 of PAJA, because it constitutes the exercise of public power. In the alternative, she relies on section 195 of the Constitution which specifies a number of constitutional controls that govern the public administration.[47] Both arguments raise constitutional issues.[48]

Does the High Court have concurrent jurisdiction with the Labour Court in this matter?

[56] In Fredericks,[49] this Court considered the scope of the jurisdiction of the High Court to determine certain complaints arising out of an employment relationship. That case concerned the refusal by the Department of Education to approve applications for voluntary retrenchment packages. Following the first democratic elections in 1994 there was an amalgamation of a number of education departments, and it was realised that there was a need to reduce the number of teachers. An agreement was reached at the Education Labour Relations Council concerning amongst other things, a process of voluntary retrenchments in terms of which teachers would be permitted to apply for voluntary severance packages. Initially, applications for voluntary retrenchments were approved but were later refused. The applicants in that case challenged the refusal of their applications on the grounds that it infringed their rights under section 9 (the right to equality) and section 33 (right to just administrative action) of the Constitution. The High Court held that the dispute concerned a collective agreement, a matter governed by section 24 of the LRA and in respect of which the Labour Court had exclusive jurisdiction under section 157(1) of the LRA.

[57] On appeal to this Court, the applicants alleged that the State, in its capacity as employer, did not act procedurally fairly in the administration of the collective agreement, and in particular in considering their applications for voluntary retrenchment packages. This Court found that the applicants’ claim was not based on contract but was based on their constitutional rights to administrative justice and equal treatment and flowed “from the special duties imposed upon the state by the Constitution.”[50]

[58] Fredericks is distinguishable from the present case. Notably, the applicants in Fredericks expressly disavowed any reliance on section 23(1) of the Constitution, which entrenches the right to a fair labour practice. Nor did the claimants in Fredericks rely on the fair labour practice provisions of the LRA or any other provision of the LRA. The Court therefore did not consider, but left open, the question whether a dispute arising out of the interpretation or application of a collective agreement can also give rise to a constitutional complaint as envisaged in section 157(2) of the LRA.

[59] The starting point for the enquiry as to whether the High Court has concurrent jurisdiction with the Labour Court in respect of Ms Chirwa’s claim is section 157(1) of the LRA, which provides that the Labour Court has exclusive jurisdiction over all matters that “are to be determined by the Labour Court.” Thus where exclusive jurisdiction over a matter is conferred upon the Labour Court by the LRA or other legislation, the jurisdiction of the High Court is ousted.[51] The effect of section 157(1) is therefore to divest the High Court of jurisdiction in matters that the Labour Court is required to decide except where the LRA provides otherwise.

[60] It is apparent from the provisions of section 157(1) that it does not confer “exclusive jurisdiction upon the Labour Court generally in relation to matters concerning the relationship between employer and employee.”[52] It seems implicit from the provisions of this section that the jurisdiction of the High Court is not ousted simply because a dispute is one that falls within the overall sphere of employment relations. The jurisdiction of the High Court will only be ousted in respect of matters that, in the words of section 157(1) “are to be determined by the Labour Court.” This is evident from section 157(2), which contemplates concurrent jurisdiction in constitutional matters arising from employment and labour relations.

[61] Ms Chirwa’s complaint is that Mr Smith “failed to comply with the mandatory provisions of items 8 and 9 of Schedule 8 to the LRA.” Schedule 8 contains the Code that sets out guidelines that must be taken into account by “[a]ny person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure”.[53] Thus, unlike in Fredericks, the applicant here expressly relies upon those provisions of the LRA which deal with unfair dismissals. Indeed, this is the claim she asserted when she approached the CCMA. It is apparent that when she approached the High Court, she made it clear that her claim was based on a violation of the provisions of the LRA, including items 8 and 9 of Schedule 8 to that Act. However, she elected to vindicate her rights not under the provisions of the LRA, but instead under the provisions of PAJA.

[62] The LRA provides procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration, for which the CCMA is established; and establishes the Labour Court and the Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from it. Unfair dismissals and unfair labour practice are dealt with in Chapter VIII. Section 188 provides that a dismissal is unfair if the employer fails to prove that the dismissal was for a fair reason or that the dismissal was effected in accordance with a fair procedure. Item 9 in Schedule 8 to the LRA sets out the guidelines in cases of dismissal for poor work performance.

[63] Ms Chirwa’s claim is that the disciplinary enquiry held to determine her poor work performance was not conducted fairly and therefore her dismissal following such enquiry was not effected in accordance with a fair procedure. This is a dispute envisaged by section 191 of the LRA, which provides a procedure for its resolution: including conciliation, arbitration and review by the Labour Court. The dispute concerning dismissal for poor work performance, which is covered by the LRA and for which specific dispute resolution procedures have been created, is therefore a matter that must, under the LRA, be determined exclusively by the Labour Court. Accordingly, it is my finding that the High Court had no concurrent jurisdiction with the Labour Court to decide this matter.

[64] Ms Chirwa was correct in referring her dismissal to the CCMA as an unfair dismissal in terms of section 191(1)(a)(ii) of the LRA. The constitutional right she sought to vindicate is regulated in detail by the LRA. In this regard, the remarks made by Ngcobo J in relation to a specialist tribunal in Hoffmann v South African Airways[54] are apposite. Ngcobo J, when invited to express an opinion on SAA’s policy to test aspirant employees for HIV/AIDS, said the following:

“The question of testing in order to determine suitability for employment is a matter that is now governed by s 7(2), read with s 50(4), of the Employment Equity Act. In my view there is much to be said for the view that where a matter is required by statute to be dealt with by a specialist tribunal, it is that tribunal that must deal with such a matter in the first instance. The Labour Court is a specialist tribunal that has a statutory duty to deal with labour and employment issues. Because of this expertise, the Legislature has considered it appropriate to give it jurisdiction to deal with testing in order to determine suitability for employment. It is therefore that Court which, in the first instance, should deal with issues relating to testing in the context of employment.”[55] (Footnote omitted.) (Emphasis added.)

The LRA is the primary source in matters concerning allegations by employees of unfair dismissal and unfair labour practice irrespective of who the employer is, and includes the State and its organs as employers.

[65] Ms Chirwa’s case is based on an allegation of an unfair dismissal for alleged poor work performance. The LRA specifically legislates the requirements in respect of disciplinary enquiries and provides guidelines in cases of dismissal for poor work performance.[56] She had access to the procedures, institutions and remedies specifically designed to address the alleged procedural unfairness in the process of effecting her dismissal. She was, in my view, not at liberty to relegate the finely-tuned dispute resolution structures created by the LRA. If this is allowed, a dual system of law would fester in cases of dismissal of employees by employers, one applicable in civil courts and the other applicable in the forums and mechanisms established by the LRA.

[66] Ms Chirwa is not afforded an election. She cannot be in a preferential position simply because of her status as a public sector employee. There is no reason why this should be so, as section 23 of the Constitution, which the LRA seeks to regulate and give effect to, serves as the principal guarantee for all employees. All employees (including public service employees, save for the members of the defence force, the intelligence agency and the secret service, academy of intelligence and Comsec[57]), are covered by unfair dismissal provisions and dispute resolution mechanisms under the LRA.[58] The LRA does not differentiate between the State and its organs as an employer, and any other employer. Thus, it must be concluded that the State and other employers should be treated in similar fashion.

[67] Nonetheless, Ms Chirwa chose to abandon the process she had started in the CCMA and approached the High Court where she contended that her right to administrative justice, protected by section 33 of the Constitution, had been breached. She was ill-advised in abandoning the process that she had started in the CCMA. This is the route that she should have followed to its very end.

[68] Further, even if Ms Chirwa, or a similarly situated employee, sought to challenge the dismissal by relying on a constitutional issue other than one implemented through PAJA (as has been done here by relying on section 195 of the Constitution), for example discrimination, it is necessary that all remedies under the LRA are exhausted before raising such an issue in a different forum. This is required so that the LRA and its structures, which were crafted to provide a comprehensive framework for labour dispute resolution, are not undermined.

[69] However, this line of reasoning will not apply if Ms Chirwa had sought to challenge the provisions of the LRA on the basis that they were inadequate in providing protection to employees in the form contemplated by section 23 of the Constitution. This would raise a constitutional matter that is justiciable in the High Court. This is not the case in this matter.

[70] The provisions of section 157(2)[59] of the LRA has resulted in complex jurisdictional disputes insofar as determining where the jurisdiction of the Labour Court ends and that of the High Court begins, and also insofar as determining whether public sector employees are at liberty to circumvent the provisions of the LRA and frame their causes of action as ones arising under the provisions of PAJA. The choice of an appropriate forum by public sector employees in instances where they are at loggerheads with their employers concerning dismissal has been a difficult one. The High Courts and the Supreme Court of Appeal in the present case have not been unanimous on the issue.[60]

[71] To the extent that PAJA and the LRA overlap in providing public sector employees with remedies for labour-related issues, there is an urgent need for the legislature to revisit the provisions of section 157(2) of the LRA to ensure development of a coherent legal framework within which all labour disputes may be speedily resolved.

Did Ms Chirwa’s dismissal amount to administrative action?

[72] Only acts of an administrative nature are subject to the administrative justice right in section 33(1) of the Constitution. The focus of the enquiry as to whether conduct constitutes administrative action is not on the position which the functionary occupies but rather on the nature of the power being exercised. This Court has held in a number of cases that in this enquiry what matters is not so much the functionary as the function; that the question is whether the task itself is administrative or not and that the focus of the enquiry is not on the arm of government to which the relevant functionary belongs but on the nature of the power such functionary is exercising.[61]

[73] My finding that the High Court does not have concurrent jurisdiction with the Labour Court in this matter makes it unnecessary that I should arrive at a firm decision on the question of whether the dismissal of Ms Chirwa by Transnet constitutes administrative action. If, however, I had been called upon to answer that question, I would have come to the same conclusion as Ngcobo J: namely, that the conduct of Transnet did not constitute administrative action under section 33 of the Constitution for the reasons that he advances in his judgment.[62]

Applicability of section 195 of the Constitution

[74] Even if the applicant was permitted to bypass the specialised framework of the LRA in the attempt to challenge her dismissal, the reliance on section 195 is misplaced. This is illustrated by the reasoning in Institute for Democracy in South Africa and Others v African National Congress and Others (IDASA).[63] The Court in that case relied on the decision in Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and Others,[64] where it was held:

“The values enunciated in s 1 of the Constitution are of fundamental importance. They inform and give substance to all the provisions of the Constitution. They do not, however, give rise to discrete and enforceable rights in themselves. This is clear not only from the language of s 1 itself, but also from the way the Constitution is structured and in particular the provisions of ch 2 which contains the Bill of Rights.”[65]

[75] Consequently, the court in IDASA held that—

“. . . the same considerations apply to the other sections of the Constitution . . . [including] 195(1). These sections all have reference to government and the duties of government, inter alia, to be accountable and transparent. . . . In any event, these sections do not confer upon the applicants any justiciable rights that they can exercise or protect by means of access to the respondents’ donations records. The language and syntax of these provisions are not couched in the form of rights, especially when compared with the clear provisions of ch 2. Reliance upon the sections in question for purposes of demonstrating a right is therefore inapposite.”[66]

[76] Therefore although section 195 of the Constitution provides valuable interpretive assistance it does not found a right to bring an action.

Conclusion

[77] Although on her pleadings the applicant appears to be out of court, she is not left without a remedy. She must follow the route created by the LRA and exhaust all the remedies that are still available to her within that specialised framework. A condonation procedure is provided for by section 136(1) of the LRA, and thus the applicant may still pursue the route of arbitration. If she is dissatisfied with the outcome, she has the further option of pursuing the review of the arbitration award in the Labour Court, in terms of section 145 of the LRA.

Costs

[78] Although ultimately unsuccessful, Ms Chirwa has raised important constitutional issues. As such, it would not be appropriate to award costs against her. Accordingly, I make no order as to costs.

Order

[79] The following order is made:

(a) The application for leave to appeal is granted.

(b) Condonation for non-compliance with the Rules of this Court is granted.

(d) There is no order as to costs.

[81] The issues presented in this case are a variant of familiar problems that have arisen since the enactment of section 157(2) of the Labour Relations Act, 1995 (LRA),[1] which confers concurrent jurisdiction on the Labour Court with the High Court in certain matters.[2] This provision inevitably gives rise to difficult problems of jurisdiction of the Labour Court and the High Court in labour and employment matters. In the abstract these problems come to courts as ordinary questions of statutory construction but they involve a more complicated and perspicacious process than is conveyed by the elusive phrase “ascertaining the intention of the legislature”. They involve issues of “mystifying complexity”[3] and “jurisdictional complexities”.[4] The irony is that section 157(2) has given rise to the very problems that the LRA was supposed to address. Two of the primary objects of the LRA, as I will demonstrate later in this judgment, are to address the problem of overlapping and competing jurisdictions and the use of different courts. These problems conspired to give rise to jurisdictional complexities and prevent the development of a coherent jurisprudence on labour and employment relations.[5]

[82] In Langeveldt v Vryburg Transitional Local Council and Others,[6] the Labour Appeal Court considered some of the jurisdictional problems arising from the overlap in jurisdiction between the Labour Court and the High Court. The Court noted that within four years of the Labour Court becoming fully operational, a number of employment and labour matters came before the High Courts. In those cases, the High Courts were confronted time and again with the question whether they had jurisdiction despite the existence of the Labour Court. After examining some fifteen decisions, the Labour Appeal Court concluded that these cases clearly reveal the jurisdictional complexities which the provisions of section 157(2) have generated. It called for the repeal of section 157(2) so as to deprive the High Court of jurisdiction in employment and labour matters. That was in 2001. The provision is still on our statute books.

[83] The Labour Appeal Court in Langeveldt also highlighted the nature of the problems that have not only arisen, but also those that were likely to arise as a consequence of overlapping jurisdictions. Prophetically, the Court identified as one of the problems likely to arise, the case of an employee who challenges his or her dismissal in the High Court on the grounds that it is unlawful or unconstitutional and simultaneously initiates proceedings in the Commission for Conciliation, Mediation and Arbitration (CCMA), but has the latter proceedings stayed pending the outcome of the proceedings in the High Court.

[84] In the present case we are concerned with a variant of that problem: the employee initiated proceedings in the CCMA on the grounds that her dismissal was unfair. When conciliation failed to resolve the dispute, she did not proceed with the CCMA process; instead she instituted proceedings in the High Court alleging that in dismissing her, her employer had failed to comply with the mandatory provisions of the LRA and that its conduct was therefore in breach of her constitutional right to just administrative action as given effect by the Promotion of Administrative Justice Act, 2000 (PAJA). [7] She did so because she was advised that she had two causes of action; one flowing from the provisions of the LRA, and another flowing from the right to just administrative action guaranteed in section 33 of the Constitution as given effect to by the provisions of PAJA.

[85] Ordinarily and as a matter of judicial policy, even if the High Court had concurrent jurisdiction with the Labour Court in this matter, it should be impermissible for a party to initiate the process in the CCMA alleging one cause of action, namely, unfair labour practice, and halfway through that process, allege another cause of action and initiate proceedings in the High Court. It seems to me that where two courts have concurrent jurisdiction, and a party initiates proceedings in one system alleging a particular cause of action, the party is bound to complete the process initiated under the system that she or he has elected. Concurrent jurisdiction means that a party must make an election before initiating proceedings. A party should not be allowed to change his or her cause of action mid-stream and then switch from one court system to another. In effect, the applicant is inviting us to countenance such a practice. It is an invitation which, in my view, should be firmly rejected.

[86] But the issues raised by the applicant are too important for this case to be disposed of on this narrow basis. The two questions which flow from the applicant’s allegations are, firstly, the scope of the operation of the provisions of section 157(2) of the LRA, and secondly, whether the applicant had two causes of action, one flowing from the provisions of the LRA and another from the right to just administrative action in section 33 of the Constitution as given effect to by PAJA. I will deal with these questions in turn.

The scope of the provisions of section 157 of the LRA

[87] It will be convenient, first, to identify the statutory provisions applicable; second to consider the views of the Supreme Court of Appeal and other courts on this issue; then to identify the primary objects of the LRA that are relevant to the determination of this issue; and ultimately to consider the meaning to be attributed to section 157(2).

[88] Section 157 of the LRA governs the jurisdiction of the Labour Court and in relevant part provides:

(a) employment and from labour relations;

[89] One of the questions which the courts below had to consider was whether the applicant’s complaint was justiciable in the High Court. Four judges of the Supreme Court of Appeal held that the High Court had jurisdiction to adjudicate the applicant’s complaint. Mthiyane JA with Jafta JA concurring, held that where an employment dispute raised an alleged violation of a constitutional right, a litigant is not confined to the remedies under the LRA and the jurisdiction of the High Court is not ousted either. He cited with approval a statement from the High Court decision in Mbayeka v MEC for Welfare, Eastern Cape[8] to the effect that the Labour Court will never enjoy exclusive jurisdiction even in matters concerning unfair labour practice because the right to fair labour practices is a constitutional right guaranteed in section 23.[9] Cameron JA, with Mpati JA concurring, approached the matter on the footing that the High Court had jurisdiction. He found that when Transnet dismissed the applicant, it trenched on two constitutional rights, namely, her right to fair labour practices and her right to just administrative action.[10] Conradie JA held that a complaint arising from a procedurally unfair dismissal for work performance, is a quintessentially LRA matter.[11] He concluded that the applicant went to the wrong forum.[12]

[90] The views expressed by Cameron and Mthiyane JJA have subsequently been reaffirmed in two recent decisions of the Supreme Court of Appeal.[13] The views of the Supreme Court of Appeal on the provisions of section 157 are summarised in Boxer Superstores Mthatha and Another v Mbenya as follows:

“The exclusive jurisdiction of the Labour Court has been carefully circumscribed in recent years. Section 157(1) of the LRA provides that subject to the Constitution and the Labour Appeal Court’s jurisdiction, and except where the LRA itself 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’. Despite the seeming breadth of this provision, it is now well established that—

(i) (as Peko ADJP observed in dismissing the jurisdictional objection) s 157 does not purport to confer exclusive jurisdiction on the Labour Court generally in relation to matters concerning the relationship between the employer and employee (Fedlife Assurance Ltd v Wolfaardt), and since the LRA affords the Labour Court no general jurisdiction in employment matters, the jurisdiction of the High Court is not ousted by s 157(1) simply because a dispute is one that falls within the overall sphere of employment relations (Fredericks and Others v MEC for Education and Training, Eastern Cape, and Others);

(ii) the LRA’s remedies against conduct that may constitute an unfair labour practice are not exhaustive of the remedies that might be available to employees in the course of the employment relationship—particular conduct may not only constitute an unfair labour practice (against which the LRA gives a specific remedy), but may give rise to other rights of action: provided the employee’s claim as formulated does not purport to be one that falls within the exclusive jurisdiction of the Labour Court, the High Court has jurisdiction even if the claim could also have been formulated as an unfair labour practice (United National Public Servants Association of SA v Digomo NO and Others);

(iii) an employee may therefore sue in the High Court for a dismissal that constitutes a breach of contract giving rise to a claim for damages (as in Fedlife);

(iv) similarly, an employee may sue in the High Court for damages for a dismissal in breach of the employer’s own disciplinary code which forms part of the contract of employment between the parties (Denel (Edms) Bpk v Vorster).”[14] (Footnotes omitted.)

[91] The views expressed by the Supreme Court of Appeal and other courts on section 157 highlight the fundamental problem, namely, how to reconcile the provisions of subsections (1) and (2). Subsection (1) purports to confer on the Labour Court “exclusive jurisdiction in respect of all matters that elsewhere in terms of [the LRA] or in terms of any other law are to be determined by the Labour Court.” On the other hand subsection (2) confers on the Labour Court “concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in [the Bill of Rights]”. However the alleged or threatened violation must arise from the employment or labour relations or constitutionality of any executive or administrative act of the State as an employer.

[92] In United National Public Servants Association of SA v Digomo and Others[15] the Supreme Court of Appeal held that provided the employee’s claim as formulated does not purport to be one that falls within the exclusive jurisdiction of the Labour Court, the High Court has jurisdiction even if the claim could have been formulated as an unfair labour practice. The difficulty with this view is that it leaves it to the employee to decide in which court the dispute is to be heard. By characterising the manner in which the disciplinary hearing was conducted as unfair dismissal, the employee could have the dispute heard in the Labour Court. Yet by characterising the same dispute as constituting a violation of a constitutional right to just administrative action, the employee could have the same dispute heard in the High Court. It could not have been the intention of the legislature to bring about this consequence.

[93] Some High Courts, notably in Mgijima v Eastern Cape Appropriate Technology Unit and Another[16] and Mcosini v Mancotywa and Another,[17] have expressed the view that courts should look not at how the employee has characterised the dispute but the substance of the dispute. If the substance and the nature of the dispute is one that falls under the LRA, the Labour Court has exclusive jurisdiction under section 157(1). These cases hold that what is in essence a labour dispute under the LRA should not be labelled a constitutional dispute simply by reason of the fact that the same sets of facts and the issues raised could also support a conclusion that the employer conduct complained of amounts to a violation of a right entrenched in the Constitution. The exclusive jurisdiction of the Labour Court cannot be avoided by alleging a fundamental right other than the right to fair labour practices.[18]

[94] In Jones and Another v Telkom SA Ltd and Others,[19] the Pretoria High Court expressed a similar view holding that:

“In this case I am convinced that a vital component of the issue to be determined concerns unfair dismissals, unfair labour practices and dismissals based on operational requirements, all issues that ultimately resort under the exclusive jurisdiction of the Labour Court. The applicants have attempted to disavow a reliance on unfair dismissal in their prayers, but it is clear from the body of their affidavits that they consider the process adopted by the first respondent as one that has unfairly led to the termination of their employment, either as from 31 March 2005 or from 31 May 2005.

It does not help to say that it is a constitutional issue. Even to determine whether the process followed was fair constitutionally speaking; one will have to begin to establish whether it was fair in terms of the Labour Relations Act. Constitutional issues cannot be determined in the abstract. In this case what is at stake is the fairness of a restructuring process. Whether the process was fair has to be judged according to the facts of the case and in the context of the national legislation that gives effect to s 23(1) of the Constitution.”[20] (Footnotes omitted.)

[95] However in Boxer Superstores the Supreme Court of Appeal expressed a different view. There it was contended that what matters is not the form of the employee’s complaint but the substance of the complaint.[21] The Supreme Court of Appeal held that the focus on the substance of the dispute leaves out of account the fact that jurisdictional limitations often involve questions of form.[22] It noted that the employee in that case “formulated her claim carefully to exclude any recourse to fairness, relying solely on contractual unlawfulness.”

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South Africa: Constitutional Court

Chirwa v Transnet Limited and Others (CCT 78/06) [2007] ZACC 23 (28 November 2007)