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Rampola v MEC for Education Limpopo and Another (26675/05)  ZAGPHC 111 (24 October 2005)
Labour law – High Court not having jurisdiction to hear matter which is substantially built on alleged unfair labour practice in Labour Relations Act. Insufficient averments in terms of PAJA to base jurisdiction otherwise.
Van Rooyen AJ
 This is an application for a rule nisi that the decision of the Second Respondent on the 31st May 2005 to summarily dismiss the Applicant from her position as Acting District Senior Manager, Capricorn District at the Limpopo Provincial Government be reviewed and set aside. Further that an interdict be issued prohibiting the First Respondent, the MEC for Education Limpopo, from appointing another candidate in the said position.
The Applicant is Ms MC Rampola, who until the summary dismissal complained of, was the acting District Senior Manager (Capricorn District) in the Department of Education, Limpopo. The First Respondent is the MEC for Education, Limpopo Province. The Second Respondent is Mr Nengwekhulu, who is the Head of the Department of Education, Limpopo Province.
The Applicant was appointed as acting District Senior Manager in the Department of Education, Limpopo with effect from 1 July 2004, and held this position until her summary dismissal by the Second Respondent on 31 May 2005.The dispute which led to the said dismissal has its origin in a SADTU sit-in staged in the Applicant’s office on the night of 10 May 2005.The Applicant, as a member of the District Management, was to have met with the SADTU regional structure to address the grievances of the latter. SADTU required as a pre-condition, the attendance of all management members. However, various members of the district management were unable to attend the meeting, and consequently the Applicant avers that she was given conflicting instructions as to whether she should be present at the sit-in or not. Furthermore, the team leader, Mr Marishane, had also left.
The Applicant received a telephone call from the Second Respondent during the course of which she was told not to report to her General Manager, and that she would be removed from her post as she was simply employed in an acting capacity. There was no suggestion that her dismissal would be for any other reason than her non-attendance at the meeting. It is further apparent that, on the Second Respondent’s version, they had spoken telephonically at about 20h30 when the Applicant indicated that she “would go if accompanied by the police and I did not want the police to become involved.” On the 23rd May 2005, the dispute between the Applicant and the Second Respondent was brought to the attention of the MEC concerned, who was requested to intervene so that the dispute could be dealt with in a proper fashion. It is common cause that no response was forthcoming from the Respondents. Notwithstanding such request, no formal disciplinary or dispute resolution procedures were implemented. Instead the Applicant was dismissed on 31 May 2005 without notice and accordingly placed back in her earlier position from whence she was appointed. It has subsequently come to light that on the same day a successor was formally notified of his appointment.
 It was submitted that in so acting the Applicant was denied a clear statement of the allegations against her and the consequences attaching thereto as well as a reasonable opportunity to make representations. She had, according to her, been unfairly dismissed (both substantively and procedurally) in terms of the Labour Relations Act 1995 (LRA), the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and s 23 of the Constitution. It should be pointed out that “dismissal” is not the correct term in the circumstances. Since she was in the employ of the department and was simply placed back in her old position, she was demoted from the acting position. Nevertheless, her case that she was treated unfairly both procedurally and substantively remains at the core of her complaint.
 Mr Shaba, for the Respondents, argued in limine that the relief sought by the Applicant is catered for by sections 158(1)(i), 158(1)(ii), 158(1)(iii) and 158(h) of the LRA and must be determined by the Labour Court, alternatively through the dispute resolution procedures of the accredited Bargaining Council namely, the Education Labour Relations Council or the General Public Service Sectoral Bargaining Council. A vital component of the issue raised by the Applicant in the founding papers concerns procedurally and substantively unfair “dismissal”. These issues resort, it was submitted, under the exclusive jurisdiction of the Labour Court, the CCMA and/or the relevant Bargaining Councils. Mr Davies, for the Applicant, however argued that several High Court judges have heard similar matters on the merits and that the founding affidavit had widened the scope of the present inquiry by also basing the case on s 23 of the Constitution of the Republic of South Africa and PAJA.
 The first matter to be decided is whether this Court has jurisdiction to hear this labour dispute. S 157(1) and (2) of the LRA provide as follows:
'157 Jurisdiction of Labour Court
(1) Subject to the Constitution and s 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 Supreme Court -
(a) in respect of any alleged violation or threatened violation, by the State in its capacity as employer, of any fundamental right entrenched in chap 3 of the Constitution; and
(b) in respect of 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 employer.
The section confers exclusive jurisdiction on the Labour Court in respect of matters that in terms of that Act are to be determined by the that Court. In terms of Chapters VII and VIII of the LRA read together, such a dispute (save for automatically unfair dismissals and dismissals for operational requirements which fall within the exclusive jurisdiction of the Labour Court), are to be adjudicated by the CCMA and/or any other accredited institution in terms of the LRA through conciliation and/or arbitration processes; ultimately to resort under the Labour Court. S 23(1) of the LRA provides that a collective agreement is binding on parties to such an agreement. In the First Respondent’s affidavit it is stated that the Applicant is bound by the grievance procedures as contained in Chapter H of the Personnel Administration Measure (Government Gazette 19867) of 18 February 1999 and/or Public Service Grievance Procedure, applicable to her whilst acting as the Senior District Manager. The Applicant did not file a replying affidavit and, accordingly, did not deny these averments. I will, nevertheless, in the interests of justice, accept that the Applicant has denied that she is bound by the said procedures.
The fairness of the procedure followed by the Second Respondent in terminating the Applicant's acting cannot be determined without having reference to matters that fall within the purview of the LRA and more particularly Chapters VII and VIII thereof. Such matters are to be determined by the CCMA and/or relevant Bargaining Councils in terms of Chapters VII and VIII of the LRA and ultimately resort under the Labour Court in terms of S 157(1) of that Act.
See the incisive judgment of Botha J in Hugh Jones and Ken Dickenson v Telkom South Africa Limited
and Others ( case number: 917/2005 TPD unreported). Botha J refers to the contrary decision in Mbayeka
& Another v MEC for Welfare, Eastern Cape 2001(4) BCLR 374(TkH) but indicates that the judgment in
Mgijima v EC Appropriate Tchnology Unit and Qnother 2000(2) SA 291(TkH) is to be preferred. I respectfully
agree with the learned Judge’s preference. I accordingly also do not, with respect, support the approach in
Ntabeni v Member of the Executive Council for Education, Eastern Cape 2002(3) SA 103 (TkH).
 In Manyathi v MEC for Transport, Kwa Zulu Natal, and Another
2 002 (2) SA 262( N) at 266G.Magid J held that s 157(2) LRA merely extends the jurisdiction of the Labour Court. With reference to s 169(a) of the Constitution of the Republic, the High Court does not have authority to decide matters which are entrusted to another Court of a status similar to a High Court. I quote what the learned Judge says in this regard in a footnote and, with respect, fully agree with his interpretation of s 157(2).
“Section 169(a) of the Constitution confers on the High Court jurisdiction to deal with any constitutional matter 'except a matter that . . . only the Constitutional Court may decide; or . . . is assigned by an Act of Parliament to another Court of a status similar to a High Court.'This approach to s 157(2) has also been approved of by Botha J in Hugh Jones and Ken Dickenson v Telkom South Africa Ltd. Supra note 1. Botha J says the following at p 5:
That provision of the Constitution gives the High Court very wide powers to determine any constitutional matter other than those specifically excluded; and in this context it is significant to note that the Labour Court has, in terms of s 151(2) of the Act 'a status equal to that of a Provincial Division of the High Court'.
Furthermore, much of the work of the Labour Court is taken up with determining questions relating to alleged unfair labour practices. Section 23(1) of the Constitution confers on everyone the right to fair labour practices. The Labour Court is therefore endowed by necessary implication or in terms of s 170 of the Constitution with the jurisdiction to decide constitutional questions relating to labour practices. That being the case, it seems to me that complaints about unfair labour practices are, in terms of s 169(a)(ii) of the Constitution excluded from the jurisdiction of the High Court. Similar considerations, in my view, relate to complaints about unfair or unjust administrative action in breach of s 33(10) of the Constitution where they relate to labour disputes justiciable in the Labour Court.
In my view, all the Legislature intended by the provisions of the section (whether in its old or its new form) was to confer on the Labour Court a jurisdiction, which in this regard was to be concurrent with, in the sense of being equivalent to, that of the High Court, to deal with certain other constitutional matters, but only in the circumstances therein referred to.
The conclusion drawn by some Courts that, because of the provisions of the section, the High Court is endowed with concurrent jurisdiction with the Labour Court in labour disputes in the circumstances contemplated by the section gives rise, with respect to those who have come to that conclusion, to certain anomalies and absurdities which could not have been intended by the Legislature. For example, if what may be termed the constitutional issues are raised (as in this case) in the course of what is otherwise a labour dispute brought in the High Court and the Court finds on the facts that no constitutional right of the applicant has actually been infringed, it will thereby make a finding which demonstrates that it did not have jurisdiction to hear the case in the first instance. This is akin to the problem of renvoi in the conflict of laws. (continued on next page)
Moreover, s 23(1) of the Constitution provides that everyone has the right to fair labour practices. That would necessarily mean, if the contrary interpretation of the section were to prevail, that the High Court would have jurisdiction to hear every labour dispute in which the employee alleges that he or she has suffered from an unfair labour practice. Similar considerations apply if the complaint, as in this case, relates to alleged unfair or unjust administrative action contrary to the constitutional right contained in s 33(1) of the Constitution.
Finally, could it seriously be contended on the principle inclusio unius est exclusio alterius that the Labour Court has no jurisdiction to determine disputes involving infringements of the constitutional rights to fair labour practices or fair and just administrative action where the employer is not the State because it has no constitutional jurisdiction apart from that conferred by the section? Obviously not, for the very foundation of the Labour Court's existence is to deal with unfair labour practices.
The Legislature could simply not have intended these consequences. And I arrive at this conclusion, despite the obligation imposed on all Courts, of which I am well aware and to which I fully subscribe, to advance a culture of constitutionality, or as it is put in s 39(2) of the Constitution, to 'promote the spirit, purport and objects of the Bill of Rights'.
In my view, therefore, if the present dispute is one to which s 157(1) of the Act applies, the mere fact that the applicant is employed by an organ of State which has, according to the applicant, infringed his constitutional rights does not confer jurisdiction on this Court to deal with the dispute.”
“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…”
The trend of Full Bench decisions of this Division also supports the view that where a matter is catered for in the LRA, it should be dealt with in terms of the LRA. See Molato & Others v DMG Construction 2004(4) SA 414(T); Ampofo & Others v MEC for Education, Culture, Sports & Recreation, Northern Province and Another 2002(2) SA 215(T).
 It could not have been the intention of the Legislature to permit an employee to raise what is essentially a labour dispute in terms of the LRA as a constitutional matter under the provisions of s 157 (2) of the LRA. Any view to the contrary would run counter to the purpose and objects of the LRA, because it would effectively mean that the High Court is called upon to determine rights which have already been given effect to and which are regulated by the LRA. To hold otherwise would be to ignore the remainder of the provisions of the LRA and the dispute resolution mechanisms created by that Act. A less narrow approach may give rise to unnecessary "forum shopping” simply because it is convenient to do so.
See Langeveldt v Vryburg Transitional Local Council & Others 2001 5 ILJ 1116 (LAC) at para  et seq.; also see Naptosa & Others v Minister of Education Western Cape & Others 2001(2) SA 112(C); Van Jaarsveld and Van Eck Principles of Labour Law(2002) 444-5 give an overview of judgments on the overlapping of jurisdictions and state that the LRA “unfortunately did not avert the overlapping and competing jurisdictions”.The relief sought by the Applicant is catered for in Section 158 of the LRA.
Mgijima (supra) at 292H and 293F; Manyathi (supra) at 267B – C; also compare CommunicationsI shall now determine whether the Applicant does not, in any case, have the right to approach this Court.
Workers Union and Another v Telkom SA Ltd and Another 1999(2) SA 568(T) at 594-595B.
 The applicant has based her application on the unfair procedure followed in terms of the LRA, the Promotion of Administrative Justice Act 3 of 2000 and s 23 of the Constitution of the Republic of South Africa. It has been held that s 157(1) does not necessarily mean that the LRA governs all facets of employment contracts. In Fedlife Assurance Ltd v Wolfaardt 2002(1) SA 49(SCA). it was held that the common law right of an employee to sue an employer for specific performance or damages has not been withdrawn by the LRA and that a Court other than the Labour Court may be approached in such a case.
 Whether a particular dispute falls within the terms of s 191 depends upon what is in dispute, and the fact that an unlawful dismissal might also be unfair (at least as a matter of ordinary language) is irrelevantNugent AJA ( as he then was) states the following at para :
(continued from previous page) to that enquiry. A dispute falls within the terms of the section only if the 'fairness' of the dismissal is the subject of the employee's complaint. Where it is not, and the subject in dispute is the lawfulness of the dismissal, then the fact that it might also be, and probably is, unfair, is quite coincidental for that is not what the employee's complaint is about. The dispute in the present case is not about the fairness of the termination of the respondent's contract but about its unlawfulness and for that reason alone it does not fall within the terms of the section (even assuming that the termination constituted a 'dismissal' as defined in chap 8). In those circumstances the respondent's action is not a 'matter' that is required to be adjudicated by the Labour Court as contemplated by s 157(1) and the special plea was correctly set aside.”
“ In my view chap 8 of the 1995 Act [ the LRA] is not exhaustive of the rights and remedies that accrue to an employee upon the termination of a contract of employment. Whether approached from the perspective of the constitutional dispensation and the common law or merely from a construction of the 1995 Act itself I do not think the respondent has been deprived of the common-law right that he now seeks to enforce. A contract of employment for a fixed term is enforceable in accordance with its terms and an employer is liable for damages if it is breached on ordinary principles of the common law.”
This interpretation does not support the applicant. The causa for her application is not a common law one on the papers, but is focused on unfair dismissal in terms of the LRA and PAJA. The causa is also not similar to the causa referred to in Naptosa & Others v Minister of Education Western Cape & Others. Supra.In that matter the Court held that the validity of the clauses in a re-employment contract were not catered for in the LRA.
“ As far as the subject-matter of a dispute is concerned, the Labour Court, broadly speaking, in the field of individual labour relations has jurisdiction over the areas of security of employment (unfair dismissal, unfair suspension and the failure to re-employ or reinstate) and unfair treatment in relation to work opportunities (promotion, demotion, training and benefits). The present dispute does not fall within any of these categories. It involves the validity of a clause in the teachers' re-employment contracts. And although the parties to the dispute are persons over whom the Labour Court would have jurisdiction (see ss 209 and 213 of the LRA), I must conclude that this Court has jurisdiction to deal with the subject-matter of the dispute. Before doing so, however, I shall discuss the objection to the Court's jurisdiction to grant the relief requested in the third claim.” - per Conradie J (as he then was) at 120A - B/C. (emphasis in italics added)
 Applicant has also based her application on s 23 of the Constitution, which guarantees every one the right to fair labour practices. In this regard the following was stated by O’Regan J in Fredericks & Others v MEC for Education & Training, Eastern Cape & Others at paras ,  and  : 2002(2) SA 693(CC)
“ As stated above, the applicants in this case have alleged an infringement of their rights under ss 9 and 33 of the Constitution. Their claim is not based on contract. It is based on their constitutional rights to administrative justice and equal treatment. They allege that the State, acting in its capacity as employer, did not act procedurally fairly in the administration of Resolution 3, and in particular in considering their applications for voluntary retrenchment. To decide this matter it is not necessary for us to consider the merits of their claim or the extent to which the State acting in its capacity as employer is obliged to comply with the dictates of s 33 or s 9. What is clear, however, is that the applicants' claim does not arise only from the provisions of Resolution 3 itself. It arises from the special duties imposed upon the State by the Constitution.
 It is important to note that in this case the applicants expressly disavow any reliance on s 23(1) of the Constitution, which entrenches the right to fair labour practices. The preamble to the Labour Relations Act makes it plain that the purpose of the Act is to give statutory effect to this right. The question therefore does not arise in this case whether a dispute arising out of the interpretation or application of a collective agreement gives rise to a constitutional complaint in terms of s 23(1). That question raises difficult issues of constitutional interpretation that we need not address now.”
 S 157(1) therefore has the effect of depriving the High Court of jurisdiction in matters that the Labour Court is required to decide except where the Labour Relations Act provides otherwise. Deciding which matters fall within the exclusive jurisdiction of the Labour Court requires an examination of the Labour Relations Act to see which matters fall to be determined by the Labour Court. It is quite clear that the overall scheme of the Labour Relations Act does not confer a general jurisdiction on the Labour Court to deal with all disputes arising from employment.” (emphasis in italics added)
Applying these principles the Constitutional Court held that the Court a quo should have dealt with the labour dispute in terms of ss 9 and 33 of the Constitution. In the present matter the applicant has referred to seven grounds in s 6 of PAJA as a basis for attacking her unfair “dismissal”. I am not convinced that a mere reference to PAJA brings her case within the jurisdiction of this Court. Of course, the facts on which the application is based are set out, but they lack the specificity to bring them under s 6 of PAJA.
 This is also not a case where this Court is called upon to interpret legislation in the light of the Constitution or where the constitutionality of legislation is attacked. The relevant dicta in National Education Health and Allied Workers Union v University of Cape Town and Others 2003(3) SA 1(CC). are, accordingly, also not applicable.
2003(3) SA 1 (CC) where Ngcobo J states at para : “On behalf of UCT it was contended that where one is dealing with a statute that gives effect to fundamental rights guaranteed in the Constitution, the only constitutional matter that may arise relates to the constitutionality of its provisions. If it were not so, the argument went, then this Court would have jurisdiction in all labour matters. This contention has no merit. In relation to a statute a constitutional matter may arise either because the constitutionality of its interpretation or its application is in issue or because the constitutionality of the statute itself is in issue. A challenge to the manner in which the statute has been interpreted or applied does not require the litigant to challenge the constitutionality of the provision, the construction of which is in issue. Moreover in the case of a statute such as the one in issue in this application which has been enacted to give content to a constitutional right, the proper interpretation of the statute itself is itself a constitutional matter.” At para  and  the learned Judge says: “ The concept of fair labour practice must be given content by the Legislature and thereafter left to gather meaning, in the first instance, from the decisions of the specialist tribunals including the LAC and the Labour Court. These Courts and tribunals are responsible for overseeing the interpretation and application of the LRA, a statute which was enacted to give effect to s 23(1). In giving content to this concept the Courts and tribunals will have to seek guidance from domestic and international experience. Domestic experience is reflected both in the equity-based jurisprudence generated by the unfair labour practice provision of the 1956 LRA as well as the codification of unfair labour practice in the LRA. International experience is reflected in the Conventions and Recommendations of the International Labour Organisation. Of course other comparable foreign instruments such as the European Social Charter 1961 as revised may provide guidance.
 That is not to say that this Court has no role in the determination of fair labour practices. Indeed, it has a crucial role in ensuring that the rights guaranteed in s 23(1) are honoured. In the First Certification Judgment this Court remarked in relation to s 23 in general:
'The primary development of this law will, in all probability, take place in labour courts in the light of labour legislation. That legislation will always be subject to constitutional scrutiny to ensure that the rights of workers and employers as entrenched in NT 23 are honoured.'
Although these remarks were made in the context of collective bargaining, they apply no less to s 23(1). This Court also has an important supervisory role to ensure that legislation giving effect to constitutional rights is properly interpreted and applied.” (emphasis added in italics)
 My conclusion is accordingly that the papers in this matter have not established any route to this Court. The Court, accordingly, does not have jurisdiction to hear this matter.
The application is dismissed with costs.
JCW van Rooyen…………………….
Acting Judge of the High Court
Applicants’ Advovate : SW Davies Who did not draft the papers., New Court Chambers, Pretoria, instructed by JW Wessels & Partners Inc, Pretoria.
Respondents’ Advocate: SM Shaba, Pretoria, instructed by the State Attorney, Pretoria.