---

FORM A

FILING SHEET FOR EASTERN CAPE DIVISION JUDGMENT

PARTIES: Police and Prisons Civil Rights Union (POPCRU)

vs

The Minister of Safety and Security and 4 others

• Case Number: 2756/2006

• High Court: Grahamstown

• Date heard: 22 May 2008

• Date delivered: 17 July 2008

JUDGE(S): Erasmus J

LEGAL REPRESENTATIVES –

Appearances:

• for the Applicant(s): Adv. M. Lowe SC and Adv. P.N. Kroon

• for the Respondent(s): Adv. Kennedy SC

Instructing attorneys:

• Applicant(s): Wheeldon Rushmere & Cole

• Respondent(s): Dold & Stone

CASE INFORMATION -

• Nature of proceedings: Application

• Topic:

• Key Words: Jurisdiction – Claim in terms of Labour Relations Act 66 of 1995 – Exclusive

jurisdiction of Labour Court – High

Court lacks jurisdiction

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case no: 2756/2006

Date heard: 22.5.2008

Date delivered: 17.7.2008

In the matter between:

POLICE AND PRISONS CIVIL RIGHTS UNION First applicant

(POPCRU)

VUYILE JACKSON GCABA Second applicant

vs

THE MINISTER OF SAFETY AND SECURITY First respondent

NOMINE OFFICIO

THE NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICE

NOMINE OFFICIO Second respondent

PROVINCIAL COMMISSIONER OF THE

S A POLICE SERVICE Third respondent

MORGAN G GOVENDER Fourth respondent

VAKALA MOYAKE Fifth respondent

JUDGMENT

A.R. ERASMUS J:

[1] The second applicant is a senior superintendent in the employ of the South African Police Service. During the period 2003 up and until the end of February 2006 he occupied the position of station commander, Grahamstown. During 2005 the third respondent decided to upgrade the post. The second applicant applied for the position but he was not appointed to the post and instead the fourth respondent was so appointed.

[2] The applicants make application for an order:

'1. That the decision by the Third and Second Respondent to recommend and appoint the Fourth Respondent as Station Commissioner, Grahamstown, be declared unlawful, unconstitutional, void, and without legal force or effect;

2. That the decision not to appoint the Second Applicant as the Station Commissioner, Grahamstown, be declared biased, influenced by an error of law, arbitrary and void;

3. That the decision by the Third and Second Respondents to appoint the Second Applicant as Area Head of Crime Prevention, Grahamstown, be declared unlawful, unconstitutional, void and without legal force and effect;

4. That the aforesaid decisions by the Third and Second Respondents be declared not to be rationally connected to the information placed before them.

5. That the Second Respondent reinstate the Second Applicant forthwith to the position of Station Commissioner, Grahamstown, with full benefits and in terms of the contract of employment relevant to such position as at the 1^st March 2006.'

[3] The question arises whether the High Court has jurisdiction to hear and decide the application. The second applicant submits that he is entitled to approach the court by virtue of s 157(2) of the Labour Relations Act 66 of 1995 ('the LRA'). His employer is an organ of state. Decisions of the third and second respondent were, he contends, decisions not properly and correctly taken, and were fatally flawed having regard to the principles enshrined in the Constitution, the common law, and the provisions of the Promotion of Administrative Justice Act 3 of 200 ('PAJA'). He submits that the entire matter was a constitutional matter having regard to the fact that the provisions of the Constitution (the Constitution of the Republic of South Africa Act 108 of 1996) provided him the right to administrative action which is lawful, reasonable and procedurally fair. He submits that those constitutionally entrenched entitlements have been afforded legislative effect by virtue of PAJA. The constitutional guarantee of a right to fair labour practices is given legislative effect by the LRA. He contends further that his constitutional and contractual rights were ignored and violated.

[4] In Chirwa vs Transnet Limited and others [2007] ZACC 23; 2008 (3) BCLR 251 (CC) the Constitutional Court held that the Labour Court has exclusive jurisdiction in respect of matters that come within the ambit of the LRA. Skweyiya J stated in his majority judgment that the LRA is the primary source in matters concerning allegations by employees of unfair labour practice irrespective of who the employer is, and it includes the state and its organs. He stated further that the complainant in the matter, Ms. Chirwa, had access to the procedures, institutions and remedies specifically designed by the LRA to address her complaint. She was not afforded an election, he held. She could not be in a preferential position simply because of her status as a public sector employee. He held that she was not at liberty to circumvent the provisions of the LRA and to frame her cause of action as one arising under the provisions of PAJA. Ngcobo J, in whose judgment too the majority of the court concurred, held that the exclusive jurisdiction of the Labour Court cannot be avoided by alleging the violation of a fundamental right other than the right to fair labour practices. He held that s 157(2) in effect granted the Labour Court exclusive jurisdiction in constitutional matters relating to labour and employment disputes. He stated that it could not have been the intention of the legislator to allow an employee to raise what is essentially a labour dispute under the LRA as a constitutional issue under the provisions of s 157(2). To hold otherwise, he said, would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute resolution provisions of the LRA.

[5] It is clear that on the decision in Chirwa and the binding reasons for that decision, the High Court lacks jurisdiction in respect of the applicant’s complaints of unfair labour practice on the part of the respondents.

[6] The applicants’ prayers refer also to alleged unlawful acts on the part of the respondents. On the authority of FedLife Insurance Ltd v Wolfaardt 2002(1) SA 49 (SCA), which is undisturbed by Chirwa, the High Court would have jurisdiction in such regard. It is however clear from the second applicants’ averments on jurisdiction and the nature and substance of his complaints that his claim is directed at unfair labour practice on the part of the respondents, which placed his application as a whole within the ambit of the LRA and outside the jurisdiction of the High Court. The averments by the applicant of unlawful conduct on the part of the respondents is indicental thereto and does not constitute a specific substantive complaint.

[7] In the decision of the full court of the Bhisho High Court in The Nonzamo Cleaning Services Co-operative v Ntomboxolo Appie and 10 others, an unreported judgment delivered recently in case no 5227/03, I considered more fully the import of Chirwa. The court held that on the basis of that decision the High Court had no jurisdiction to hear and decide a labour and employment related matter. The court held that Chirwa overruled the earlier decision of Fredericks and others v MEC for Education and Training, E C 2002 (2) SA 793 (CC) where the Constitutional Court had come to a contrary conclusion. (I have directed that the registrar place a copy of that judgment in the file for purposes of reference and for the information of the parties).

[8] In a matter essentially similar to the present, the full court of the Transkei High Court held that it was obliged to follow Chirwa, and that on the basis of that decision the High Court had no jurisdiction to entertain the application which related to an employment matter.

[9] I find that the court lacks jurisdiction to hear the application.

In the result, the application is dismissed with costs.

_________________________

A.R. ERASMUS

JUDGE OF THE HIGH COURT

DATE: ___________________

---