South Africa: Free State High Court, Bloemfontein

Ledimo and Others v Minister of Safety and Security and Another (2242/2003) [2003] ZAFSHC 16 (28 August 2003)

[1] The matter came to this Court by way of an urgent application in terms of rule 6(12)(a) of the Uniform Rules. It served before me on Thursday 3 July 2003. The record shows that these urgent legal proceedings were initiated on Monday 30 June 2003. The sheriff’s returns show that the application was served upon the respondents on the same day. The applicants seek an order setting aside their suspension from work and the payment of their wages since withheld by the respondents. In essence the relief sought by the applicants is re-instatement.

[2] The matter is opposed by the Provincial Commissioner, Free State Province, South African Police Service on behalf of the respondents. The first respondent has filed no affidavit. The second respondent has filed a confirmatory affidavit. The record shows that the answering affidavit and annexures thereto were filed on 3 July 2003.

[3] The applicants did not file any replying affidavit. The matter was argued on only two sets instead of the customary three sets of papers.

[4] The points in limine were argued first. I then reserved my ruling on the points in limine and directed the two counsels to proceed straight away to address the merits of the application. Having heard arguments concerning both the points and the merits I reserved judgment.

[5] It is necessary to sketch a brief historical background of this dispute. There are seven applicants involved. They are all in the employ of the South African Police Service. They are stationed at Phuthaditjhaba Police Station. They are attached to the murder and robbery unit. They are police inspectors by rank except for the seventh applicant who is a police sergeant.

[6] The undercurrent tension between the aforesaid members of the workforce police unit and the provincial police management has been simmering since Tuesday 17 December 2002. Since then the labour relations gradually deteriorated. About four months later the labour relations became so sour that the Deputy Provincial Commissioner suspended the applicants without pay on Tuesday 15 April 2003 except the second applicant. The applicants consider their suspension and the withholding of their salaries as an unfair labour practice and also unconstitutional. On Monday 30 June 2003 these legal proceedings were issued and enrolled for Thursday 3 July 2003 as I have already said.

[7] In his opposing affidavit, the Deputy Provincial Commissioner raised three points in limine. The points so raised related to technical matters such as urgency, jurisdiction, misjoinder, and non-joinder. Before Ms Van Zyl, counsel for the respondents, could address the court on these points, Mr Motloung, counsel for the applicants, also raised a point in limine from the bar. I allowed him to have the first bite of the cherry. Since the point he raised was closely linked to the point of misjoinder I shall deal with it later and in that context.

[8] In the first place, the question of non-joinder. Mr Pierre Le Roux deposed in the answering affidavit that he was the Deputy Provincial Commissioner for the Free State Province. He then went on to say:

“The decision to suspend the applicants was taken by me in the circumstances referred to below and accordingly the Provincial Commissioner should have been joined as a respondent.”

(Vide par 5 of Mr Pierre Le Roux’s affidavit.)

[9] Ms Van Zyl submitted that the National Commissioner was the real employer of the applicants and that as such he should have been cited as a party. Since neither the National Commissioner nor his subordinate, the Provincial Commissioner was cited, the failure of the applicants to do so was fatal to their case.

[10] The test of non-joinder was formulated as follows by Erasmus: SUPERIOR COURT PRACTICE at B1-94:

“The test is whether or not a party has a ‘direct and substantial interest’ in the subject-matter of the action, that is, a legal interest in the subject-matter of the litigation which may be affected prejudicially by the judgment of the court.”

The author then refers to the decision of HENRI VILJOEN (PTY) LTD v AWERBUCH BROS 1953(2) SA 151 (O) at 168-170. The Provincial Commissioner appears to me to have a direct and substantial interest in the matter. This is borne out by numerous annexures to the answering affidavit. Such documentation demonstrates his deep involvement in the matter from a very early stage. I can see no reason why the Provincial Commissioner should not be allowed to intervene in these proceedings as the third respondent and why the deponent should not deputise him. Therefore leave to intervene is hereby granted to the Provincial Commissioner. The failure of the applicants to cite the Provincial Commissioner was a formal defect in their papers. The National Commissioner and the Provincial Commissioner ought to have been cited. They have a direct and substantial interest in the matter in my view. The omission by the applicants to cite them, was indeed a non-joinder. But it does not necessarily follow from this that the application should be dismissed. I shall advance my reasons for this view later.

[11] In the second place the point of misjoinder. Ms Van Zyl argued that while the Minister of Safety and Security was the responsible political head of the South African Police Service, he was not the employer of the applicants. She argued that seeing that the dispute was based on a contractual relationship between the employer, ie the National Police Commissioner and the employees, ie the seven applicants, the Minister of Safety and Security was wrongly joined because he was not the employer of the police applicants. She submitted that such wrong citation amounted to misjoinder.

[12] Mr Motloung argued that the Minister of Safety and Security was correctly cited as the first respondent since he was not merely the political head of the South African Police Service but the supreme employer of all the members of the South African Police Service. In developing his argument further he contended that in this division the capacity of the Minister of Safety and Security as the legitimate employer of police men and police women was recognised. He then referred me to the case of STEENBERGER AND OTHERS v MINISTER OF SAFETY AND SECURITY AND ANOTHER case no 2162/2002 Free State High Court.

[13] In that case the seven applicants, implicated in a murder case, were suspended without payment of their salaries pending the outcome of the disciplinary hearings. They then launched an urgent application against the Minister of Safety and Security for the setting aside of their suspensions. Their alternative relief sought was payment of their salaries pending the outcome of their various disciplinary hearings. Van Coppenhagen J, granted the provisional order on 21 June 2002 by agreement between the parties.

[14] The above case is no authority for the proposition advanced by Mr Motloung. There unlike here, the National Commissioner was cited as the second respondent. There unlike here, the interim order was granted by agreement. Apparently no objection based on misjoinder was raised as a point in limine. Moreover, and this is very important, no final order or judgment was ever given in that case. Therefore, there is no decision emanating from the facts of that case which can be used as authority whatsoever. The case was apparently postponed sine die. At the time of delivering this judgment that situation still obtained.

[15] There can be no doubt that a police officer is a civil servant. A civil servant is someone in the employ of the State. Between the State as the master and the police officer as the servant there are a few intermediaries interposed by law. Among others, the chain consists of the Provincial Police Commissioner, the National Police Commissioner, the Provincial Member of the Executive Council and the National Minister. The Minister is the most authoritative, the most representative and the most responsible of all the State functionaries. Where an individual has an action against the State itself it is permissible to sue the State by citing its responsible political head. There is nothing new about this point. It has always been the legal position recognised by our common law. I can see no logic why the situation should be any different where the legal proceedings are initiated by an individual who happens to be a State employee.

[16] Ms Van Zyl’s contention that the Minister of Safety and Security was misjoined because, as she contended, the subject-matter of these legal proceedings was contractual in nature and not delictual in nature, is not backed up by any authority. In my view it is of no consequence whether the legal proceedings arose ex delicto or ex contractu. The author Erasmus in his work: SUPERIOR COURT PRACTICE on B1-94 commenting in general on Rule 10 The Uniform Rules of Court says the following:

“..... the question as to whether all necessary parties had been joined does not depend upon the nature of the subject-matter of the suit, but upon the manner in which, and the extent to which, the court’s order may affect the interests of third parties.”

[17] In principle the interests of the Minister ought to be identical to the interests of his administrative subordinates such as the National Police Commissioner. They share the same governmental department, the same annual budget, the same material resources, the same policing services, the same objectives, policies and visions and strategies as regards the safety and security of everyone in our country. Given such a wide sphere of common interests, I can find no sound reason for the proposition that the Minister is not an employer of the applicants. The seven applicants are all police officers. There can be no sensible denying that the National Minister and the National Police Commissioner share among many other common interests, the human resources. The National Police Commissioner is employed by the State as is the Minister. The essential difference between the two is that the National Commissioner is an appointed servant of the State, whereas the National Minister is an elected servant of the State. The appointed servant is a subordinate functionary of the State to the elected functionary of the State. Such a hierarchy is a salient feature of all the democracies of the world.

[18] The police men and the police women are employed by the National Police Commissioner. But in doing so, the National Police Commissioner does not act as an independent employer or third party with absolute and independent powers, duties and functions concerning the appointment of police officers. He is accountable to the National Minister. In short, he whom the Commissioner employs gets employed by the Minister. Whatever court order I may give against the Minister will not have more adverse impact on the Commissioner than it will have on the Minister himself. In real and practical terms such an unfavourable court order will adversely affect the national interests of the real employer, the State and not its departmental functionaries.

[19] As I see it, the engagement or employment of the police officers by the Commissioner is an administrative process of convenience. It does not preclude a police officer from looking up to the Minister as his or her employer. Section 11(1) South African Police Service Act No 68 of 1995 provides that the National Commissioner may exercise the powers and shall perform the duties and functions necessary to give effect to section 218(1) of the Interim RSA Constitution Act No 200 of 1993. Section 218(1) Act No 200 of 1993 provides that subject to the directions of the Minister of Safety and Security the National Commissioner shall be responsible for a number of specific duties and functions stipulated in the constitution. Subsection (h) thereof states that the National Commissioner shall be responsible for the recruitment, appointment, promotion and transfer of all the members of the service. The ministerial direction underlies each and every engagement of a police officer. (Vide item 24(1) schedule six - RSA Constitution Act No 108 of 1996 which preserves or retains section 218(1) of the Interim RSA Constitution Act No 200 of 1993.) Moreover, section 207(2) RSA Constitutional Act No 108 of 1996 stresses the constitutional authority of the Minister over the National Commissioner in the following words:

“The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the cabinet member responsible for policing.”

[20] In the light of all these legal prescripts I cannot accept the submission that the applicants were wrong in citing the Minister as the respondent in this matter. In my view such citation does not boil down to a misjoinder. I cannot accept the submission that the Minister was not really the employer of the applicants. On the contrary, I am persuaded by Mr Motloung’s submission that despite the terms of the contract of service between the National Commissioner and each of the applicants, the Minister remains, as he puts it, the supreme employer of the applicants. Perhaps it is advisable and prudent in cases of this nature to cite the Minister, the National Commissioner, the Provincial Member of the Executive Council and the Provincial Commissioner. But where, as in the instant case, the most senior State functionary and not the most junior State functionary in the departmental hierarchy has been cited alone - I am inclined to hold the firm view that the omission to cite the subordinate functionaries does not jeopardise their interests seeing that their interests are inextricably linked to those of the senior functionary who has been properly named, joined and served.

[21] Mr Motloung’s contention that the applicants were entitled to be granted the relief they obtained on the strength of the fact that the Minister had not delivered the requisite notice of intention to oppose the application cannot be sustained. The reasons should be obvious from what I have already said earlier in the above paragraphs. The intervention in these proceedings by the Deputy Provincial Commissioner was, in my considered view, sufficient to safeguard the interests of the Minister. As Ms Van Zyl argued, the opposition by the Deputy Provincial Commissioner is ipso facto the opposition by the Minister. It is indeed so that Mr Le Roux, the Deputy Provincial Commissioner did not aver in his affidavit that the Minister had authorised him to make the affidavit for the purpose of opposing these proceedings on his behalf.

[22] There are a few practical exigencies which strongly militate against this contention by Mr Motloung. The application was served on the State attorney here in Bloemfontein and not on the Cabinet Minister in Pretoria. The Provincial Commissioner was not available. Mr Le Roux, in his capacity as Deputy Provincial Commissioner, was the most responsible and the nearest available State functionary who could react promptly to safeguard not his own private interests but the public interests of the State. What he did he did for and on behalf of the South African Police Service as a whole as epitomised by the Minister. The steps he took to oppose the application he took for and on behalf of the Minister. He was induced to do all the acts he performed by the honest belief that the Minister, if available, would have taken exactly the same steps had the notice of motion been served upon him personally. The urgency of the matter, the huge size of the police institution, and the possible existence of the general ministerial mandate are also some of the important factors which weaken the argument that the minister was indifferent to these proceedings. Therefore, I do not accept that the perceived disinterest of the Minister can be construed as a form of consent to judgment or relief sought by the applicants. Certainly the Minister was not in wilful default

[23] In the third place, the issue of urgency. Ms Van Zyl took the point in limine that these proceedings lacked urgency as contemplated in Rule 6(12) read with Rule 6(5) of the Uniform Rules of Court. Now, subrule (12)(a) thereof allows the bringing of urgent application by way of motion proceedings and also empowers the Judge to relax or shorten the strict formal rules relating to time, among others. Subrule (12)(b) provides: that in every urgent application in terms of subrule (12)(a) the applicant shall firstly, set forth explicitly the circumstances which he avers render the matter urgent and secondly, explicitly advance the reasons why he claims that he could not be afforded substantial redress if he had brought the matter to court by way of an ordinary non-urgent procedure, instead of this extraordinary urgent procedure.

[24] In the instant case the applicants were suspended from duty on Tuesday 15 April 2003. On Wednesday 18 June 2003 their lawyer, attorney TP Mosese transmitted their demand for reinstatement by telefax. On Wednesday 25 June 2003 the Deputy Provincial Commissioner South African Police Service, Free State Province notified them by a telefax transmitted to their lawyer that the South African Police Service was not prepared to accede to their demand. On Sunday 29 June 203 Mr Ledimo the first respondent signed the founding affidavit and his colleagues signed the confirmatory affidavits. On Monday 30 June 2003 they initiated these legal proceedings and the registrar issued the necessary notice of motion. The application was enrolled for hearing on Thursday 3 July 2003. The answering affidavit was filed on the same day Thursday 3 July 2003.

[25] Mr Motloung argued that Ms Van Zyl’s submission that the applicants were trying to rely on the urgency which they themselves had created, was unfounded. He pointed out that on Wednesday 18 June 2003 the applicants demanded their reinstatement from the respondents that on Wednesday 25 June 2003 the respondents advised the applicants that they were not prepared to reconsider the suspension and that five days later the applicants launched this urgent application.

[26] The difficulty I have with Mr Motloung’s aforegoing argument is that it ignores a vital event pertaining to the history of the matter - the suspension of the applicants. It is an undeniable fact that the applicants were summarily suspended over two months prior to their demand for reinstatement. Their demand was turned down within seven days and their application was launched within five days afterwards. If and only if 18 June 2003 was the critical historic moment and 30 June 2003 the cutting edge, I would not hesitate to dismiss Ms Van Zyl’s argument and uphold Mr Motloung’s that the applicants had acted expediously with the necessary swiftness after the alleged infringement. But the fact of the matter is the offensive act complained of was committed on Wednesday 15 April 2003, sixty four days before it was challenged on Wednesday 18 June 2003. What aggravates the already bad situation is that there is virtually no attempt made in the founding affidavit to explain how the inordinate delay came about. As if such glaring omission was not bad enough, the applicants chose to waive the important procedural right to reply in order to rebut the respondents’ allegation that there was no measure of urgency. Since the applicants did not deliver a replying affidavit, I have to apply the principle as laid down in PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD 1984(3) SA 623 (AD). The principle calls upon me to adjudicate this matter on the assumption that the respondents’ version is to be preferred to the applicants as the correct account of the episode wherever the two may differ.

[27] It is not for the Judge to venture out on a radar-less expedition in search of one or other possible explanation as to the cause of the delay. It is incumbent upon the aggrieved party to approach the court without delay for a remedial relief. In SCHWEIZER RENEKE VLEIS MKPY (EDMS) BPK v DIE MINISTER VAN LANDBOU EN ANDERE 1971 PH section F 23 (TPD) on p 23 Trengove J said the following about urgency vis-a-vis tardiness of the aggrieved party:

“Volgens die gegewens voor die Hof wil dit vir my voorkom dat die applikant alreeds vir meer as ‘n maand weet van die toedrag van sake waarteen daar nou beswaar gemaak word. Die aangeleentheid het slegs dringend geword omdat die applikant getalm het .....”

The abstract which emerges from the reasoning of Trengove J is that even though an application under Rule 6(12) can on its own merits indeed be considered to be urgent, the court may nevertheless refuse to dispense with the ordinary rules or procedures if the matter has become urgent owing to the dilatory circumstances for which the applicant is to blame. In the instant case the delay was 65 days, in that case the delay was 52 days, yet the court refused to entertain the matter as an urgent application in terms of Rule 6(12). It follows therefore that the delay of the applicants in this case is of a more serious nature. As no explanation was given, I am bound to conclude that there was no sound reason for the long delay and that the delay was due to remissness on the part of the applicants.

[28] The applicants considered the matter to be urgent which is why they adopted this extra-ordinary urgent procedure. According to them the urgency of the matter lies in the fact that they are financially struggling to make ends meet since the respondents are withholding their salaries. They explicitly aver that the continued non-payment of their salaries coupled with the negative effects of the withholding thereof are the extra-ordinary circumstances which render their case urgent. On the strength of the perceived urgency the applicants modified the ordinary rules of procedure and called upon the respondents to obey the rules which they had set. The respondents were obliged to accept those rules. The respondents obeyed those rules without really admitting that the modification of the ordinary rules was valid in law. They challenged the grounds of urgency.

[29] The point which I now have to determine is whether the financial hardships of the applicants constitute grounds of urgency sufficient to justify the extra-ordinary modification of the ordinary rules by the applicants.

[30] In the unreported case of CALEDON STREET RESTAURANTS CC v MONICA D’AVIERA which was heard in the South Eastern Cape on 7 November 1997 Kroon J on p 12 quoted the following passage by Fagan J at p 113E-114B in IL & B MARCOS CATERERS (PTY) LTD v GREATERMANS SA LTD AND ANOTHER which was heard at the same time with the case of AROMA INN (PTY) LTD v HYPERMARKETS (PTY) LTD AND ANOTHER 1981(4) SA 108 (CPD):

“Other litigants waiting for their matters to be heard would be prejudiced if priority were afforded to these applications as they would have to wait longer. And what distinguishes these two applications from other matters? Applications for review such as these occur commonly and are not given priority. The prejudice that applicants are complaining about is the possibility that they may suffer losses of profits - the losses, if any, sound in money. Assuming that such losses are irrecoverable, that still does not distinguish these matters from many others awaiting their turn on the ordinary roll. Take for example all the cases wherein general damages are claimed in delict including actions instituted under the Compulsory Motor Vehicle Insurance Act 56 of 1972. Interest is not claimable on the amount awarded and litigants suffer financially by delay in the adjudication of their matters. Moreover, the fact that a litigant with a claim sounding in money may suffer serious financial consequences by having to wait his turn for the hearing of his claim does not entitle him to preferential treatment. On the other hand, where a person’s personal safety or liberty is involved or where a young child is likely to suffer physical or psychological harm, the Court will be far more amenable to dispensing with the requirements of the Rules and disposing of the matter with such expedition as the situation warrants. The reason for this differential treatment is that the Courts are there to serve the public and this service is likely to be seriously disrupted if considerations such as those advanced by the applicants in these two matters were allowed to dictate the priority they should receive on the roll. It is, in the nature of things, impossible for all matters to be dealt with as soon as they are ripe for hearing. Considerations of fairness require litigants to wait their turn for the hearing of their matters. To interpose at the top of the queue a matter which does not warrant such treatment automatically results in an additional delay in the hearing of others awaiting their turn, which is both prejudicial and unfair to them. The loss that applicants might suffer by not being afforded an immediate hearing is not the kind of loss that justifies the disruption of the roll and the resultant prejudice to other members of the litigating public.”

[31] In the case of TRUSTEES, BKA BESIGHEIDSTRUST v ENCO PRODUKTE EN DIENSTE 1990(2) SA 102 (TPD) at 108D-E Van Zyl J observed:

“Soos tereg deur mnr Marais, namens die respondent, betoog, is die blote feit dat onherstelbare skade gely word egter nie genoegsaam om ‘n saak vir dringendheid uit te maak nie. Dit mag wel ‘n grond daarstel vir ‘n aanspraak op ‘n interdik, maar die aansoek as sodanig word nie daardeur noodwendig dringend gemaak nie.”

[32] In the three cases I have quoted above the courts have held that the mere fact that irreparable financial losses have been suffered or would be suffered by the applicant was not, by itself, sufficient ground to ground the requisite urgency necessary to justify a departure from the ordinary court rules. In applying this principle, a judge will do well to keep the words of wisdom which were expressed through the lips of Kroon J on p 15 in CALEDON STREET RESTAURANTS CC (supra). I find it apposite to echo those sentiments here by quoting him verbatim:

“However, the following comments fall to be made. First, to the extent that these cases may be interpreted as laying down that financial exigencies cannot be invoked to lay a basis for urgency, I consider that no general rule to that effect can be laid down. Much would depend on the nature of such exigencies and the extent to which they weigh up against other considerations such as the interests of the other party and its lawyers and any inconvenience occasioned to the court by having to entertain an application on an urgent basis. Second, whatever the extent of the indulgence, the sanction of the court thereof that an application be heard as a matter of urgency, would not in general, in this Division, accord the matter precedence over other matters and result in the disposal of the latter being prejudiced by being delayed.”

[33] Let me assume in favour of the applicants that their financial hardship was caused by the withholding of their salaries, as they claimed, that it was sufficient to establish urgency and that such urgency justified the extra-ordinary urgent procedure they have chosen in casu. This is the first hurdle they had to jump. But there was yet another important hurdle they also had to jump. By conduct they swiftly had to demonstrate the urgency they were relying upon. In my view they have hopelessly failed to display any sense of urgency. They took their own time to launch these proceedings. By failing to take appropriate steps timeously against the respondents, they have certainly allowed the passage of time to effectively destroy whatever merits their averment of urgency might have had.

[34] By the time they woke up and rushed to court to launch this application any measure of urgency that there was originally in their matter had gradually dissipated and had virtually evaporated into thin air. I have already commented adequately on the adverse impact of their procrastination. It is enough. Ms Van Zyl’s contention that the applicants had, on their own papers, been aware of the alleged wrong for a considerable period prior to their launching these proceedings on 30 June 2003 has indeed substance. It is crystally clear, and there is no allegation or suggestion to this effect, that the respondents have committed no fresh offensive acts or wrongs which in any way may be regarded as having rekindled the urgency this matter had long lost.

[35] Finally, the issue of jurisdiction remains to be considered. It was contended on behalf of the respondents that this matter falls within the exclusive jurisdiction of the labour court and not the high court. However, on behalf of the applicants it was contended that because there was a constitutional issue in addition to the labour issue involved, the high court had concurrent jurisdiction with the labour court to entertain the matter.

The relief sought by the applicants is essentially in the nature of review. They seek to have their suspension from work imposed on them by their employer reviewed by the high court. They seek to have the employer’s decision reviewed and set aside.

The basis of the point in limine raised by the respondents was that setting aside the employer’s decision was a matter which fell within the exclusive jurisdiction of the labour court. They argued that in terms of section 157(1) of the Labour Relations Act No 66 of 1995 the high court had no jurisdiction to hear the matter.

This argument for the point in limine raised by the respondents was firmly countered by the applicants who argued that the respondents’ actions and the manner in which they went about to suspend them amounted to an administrative wrong which violated their fundamental right to lawful, reasonable and procedurally fair administrative action guaranteed by the constitution. The basis of the attack on the point in limine raised against them was that violation of their right by their employer was a matter which fell outside the exclusive domain of the labour court. They argued that in terms of section 157(2) the Labour Relations Act No 66 of 1995 the high court had concurrent jurisdiction to hear the matter.

[36] Section 157(1) provides that the labour court has exclusive jurisdiction in respect of all matters which in terms of this legislation itself or in terms of any other legislation are assigned to it for determination.

The powers of the labour court are set out in section 158 of the Labour Relations Act No 66 of 1995. Subsection (1)(h) thereof provides that the labour court may review any decision taken or any act performed by the State in its capacity as an employer.

In the instant case, there can be no doubt that the decision to suspend the applicants was a decision taken by the State and that the withholding of their salaries was an act performed by the State. In both instances the prime taker of the decision as well as the prime performer of the act was the State in its capacity as the employer of the applicants.

[37] Section 157(2) provides that the labour court has concurrent jurisdiction with the high court in respect of any alleged or threatened violation of any fundamental right which violation arises from:

(a) employment or from labour relations;

(b) any dispute over the constitutionality of any executive act or administrative act or any conduct by the State as an employer;

(c) the application of any law for the administraiton of which the Minister of labour is responsible.

[38] The ambit of these aforegoing section 157(1) and section 157(2) were closely scrutinised in three recent decisions.

In the case of BENSINGH v MINISTER OF EDUCATION AND CULTURE: PROVINCE OF KWAZULU-NATAL & OTHERS [2003] 6 BLLR 598 (D), Southwood AJ held that the high court had no jurisdiction to hear an application by a civil servant against the State for an interim interdict restraining the State in its capacity as his employer from performing certain acts adverse to his duties and functions as an acting principal of a teachers college. At 601C-D Southwood AJ said:

“In this case, the act of terminating applicant’s acting principalship was a decision taken or act performed by the State in its capacity as applicant’s employer. Therefore, the Labour Court had the power under section 158(1)(h) to review it on such grounds as are permissible in law. Accordingly, the Labour Court has the exclusive jurisdiction to exercise that power by virtue of section 157(1) of the Labour Relations Act.

Here, applicant seeks an urgent stay of the decision relieving him of his acting principalship pending the final decision on his non-promotion. This is sought in the form of an interdict.”

[39] In the case of FEDLIFE ASSURANCE LTD v WOLFAARDT 2002(1) SA 49 (SCA) at par 27 Nugent AJA, as he then was, laid down what I see as a helpful test in deciding in which matters the labour court may be truly said to have exclusive jurisdiction. Delivering the majority decision of 4-1 he said:

“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 irrelevant 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.”

[40] In the case of FREDERICKS AND OTHERS v MEC FOR EDUCATION AND TRAINING, EASTERN CAPE, AND OTHERS 2002(2) SA 693 (CC) O’Regan J said at par 38:

“Section 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. As Nugent JA held in FEDLIFE ASSURANCE LTD:

`(S)ection 157(1) does not purport to confer exclusive jurisdiction upon the Labour Court generally in relation to matters concerning the relationship between employer and employees.’ “

She went further and said the following at par 40:

“As there is no general jurisdiction afforded to the Labour Court 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. The High Court’s jurisdiction will only be ousted in respect of matters that `are to be determined’ by the Labour Court in terms of the Act.”

[41] As regards specific instances of matters which fall within the exclusive jurisdiction of the labour court, see the remarks of Nugent AJA at par 40 in FEDLIFE ASSURANCE LTD (supra). The supreme court of appeal in FEDLIFE ASSURANCE LTD (supra) and the constitutional court in FREDERICKS AND OTHERS (supra) overturned the provincial decisions where the point in limine had been upheld that a high court had no jurisdiction. In the instant case the complaint of the complainant is not about the unfairness of their suspension - it is about the unlawfulness of the decision taken against them or the administrative act performed by the State as their employer against them. In my view the point in limine was not well taken. The high court has jurisdiction to hear the matter. The applicant did not knock at the wrong door. But their knock at the right door was regrettably belated. Let me hasten to say they are at liberty to come back to this Court, if so advised to pursue the matter but then it must be by way of an ordinary procedure.

[42] Accordingly this application is dismissed for lack of urgency. The applicants must bear and pay the costs of the respondents.

__________________

MH RAMPAI, J

On behalf of the Applicants : Adv Motloung

Instructed by

Mapitse & Khang Attorneys

On behalf of the Respondents : Adv C Van Zyl

Instructed by

State Attorney

/Jacobs