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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Held in PRETORIA

Case no. 23917/08

Judgment reserved:29/06/2008

Judgment handed down: 06/06/2008

In the matter between:

J D DU BRUYN Applicant

and

NASIONALE KOMMISARIS, SAPD 1^st Respondent

DIE MINISTER VAN VEILIGHEID EN 2^nd Respondent

SEKUTITEIT

JUDGMENT

LEGODI J,

[1] In this matter, the applicant sought an interdict on an urgent basis against his employers the National Commissioner of Police and the Minister of Safety and Security in terms of whereof relief is sought in Afrikaans as follows:

1. Dat hierdie aansoek as dringend beskou word en dat kondonasie verleen word vir die nie-nakoming van die reels met betrekking tot betekening en plasing in terme van Reel 6(12).

2. Hangende die finalisering van die Applikant se mediese raad ten aansien van sy geskiktheid om in die Eerste Respondent te bly, die Eerste Respondent verbied word om die Applikant se salaris en ander voordele op te skort.

3. Dat die Eerste Respondent gelas word om onmiddelik die Applikant se salaries en ander voordele te herstel en enige agterstallige bedrae onmiddelik aan hom oor te betaal.

4. Dat die Respondente, gesamentlik en afsonderlik die koste van hierdie aansoek betaal op ‘n skaal soos van teopassing tussen prokureur en kliënt.

5. Verdere en/of alternatiewe regshulp.

[2] A brief background to this is that, the applicant is a police official in the employ of the respondents.

[3] Due to ill health resulting from the injuries he sustained whilst on duty and other psychological trauma, he has not been in a position to report for duty particularly since November 2003.

[4] As a result of the fact that his illness was work related, the applicant has been on sick leave. At a certain stage a long leave was approved by his employer. He in the meantime, underwent treatment with psychologist and psychiatric who from time to time issued medical certificates to confirm his illness and inability to return to work and in the meantime submitted the certificates to his employer.

[5] Due to his ill health, the applicant wanted to be boarded out of work. His application, despite enquiries is being delayed and in the meantime he has been on sick leave with full pay.

[6] At the end of April 2008, the applicant discovered that his salary for April 2008 has not been paid. Enquiries were made and when he could not be assisted, the present application was launched on the 19 May 2008.

[7] During the hearing of this matter, counsel for the respondent without having filed the answering affidavit on merits, raised a point in limine. That is, the issue or the cause of complaint by the applicant was a labour issue and that this court therefore does not have jurisdiction to deal with the matter.

[8] On the other hand counsel for the applicant sought to argue that the court does have jurisdiction in terms of section 157 of the Labour Relations Act 66 of 1995.

[9] Section 157 of the Labour Relations Act, deals with the jurisdiction of the Labour Court. Subsection 1 thereof grants the Labour Court exclusive jurisdiction in respect of all matters that elsewhere in terms of the Labour Relations Act or in terms of any other law, are to be determined by the Labour court.

[10] Subsection 2 of section 157 provides for 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 and arising from:

1. employment and form labour relations.

2. any dispute over the Constitutionality of any executive or administrative act or conduct or any threatened executive administrative act or conduct, by the state in its capacity as an employer and

3. the application of any law for the administration of which the Minister is responsible.

[11] Counsel for the applicant contended that the whole basis for bringing the application to this court is in terms of subsection (2)(b) set out above.

[12] On behalf of the respondents, a point was taken that this contention on behalf of the applicant should be seen in the light of the decision in Chirwa v Transnet Ltd and other (2008) 29 ILT 73 (CC). This is a Constitutional Court’s decision which is said to have the effect that an allegation of an infringement of a constitutional right and unfair administrative action in terms of Promotion of Administrative Justice Act 3 of 2000 relating to labour disputes has to be determined exclusively by the Labour Court. In particular, counsel for the respondents sought to rely on paragraphs 149 and 150 of the judgment which read as follows:

“[149] In my judgment labour and employment relations are dealt with comprehensively is s23 of the Constitution. Section 33 of the Constitution does not deal with labour and employment relations. There is no longer a distinction between private and public sector employees under our Constitution. The starting-point under our Constitution is that all workers should be treated equally and any deviation from this principle should be justified. There is no reason in principle why public sector employees who fall within the ambit of the LRA should be treated differently from private sector employees and be given more rights than private sector employees. Therefore, I am unable to agree with the view that a public sector employee, who challenges the manner in which a disciplinary hearing that resulted in his or her dismissal, has two causes of action, one flowing from the LRA and another flowing from the Constitution and PAJA.

[150] I conclude that the decision by Transnet to terminate the applicant’s contract of employment did not constitute administrative action under s 33 of the Constitution. This conclusion renders it unnecessary to decide whether PAJA applies”.

[13] Similarly, counsel for the respondents relied on what was stated in paragraph 124 in the Chirwa’s matter. For the sake of clarity and completeness the paragraph is repeated as follows:

[124] Where, as here, an employee alleges non-compliance with provisions of the LRA, the employee must seek the remedy in the LRA. The employee cannot, as the applicant seeks to do, avoid the dispute-resolution mechanisms provided for in the LRA by alleging a violation of a constitutional right in the Bill of Rights. It could not have been the intention of the legislature 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 would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute-resolution provisions of the LRA. This would inevitably give rise to forum shopping simply because it is convenient to do so or as the applicant alleges, convenient in this case ‘for practical considerations’. What is in essence a labour dispute as envisaged in LRA should not be labeled a violation of a constitutional right in the Bill of Rights simply because the issues raised could also support a conclusion that the conduct of the employer amounts to a violation of a right entrenched in the Constitution.

[14] The applicant’s cause of complaint in paragraph 8.5 and 9 of the founding affidavit is summed up as follows:

“8.5 …. Ek doen met respek ann die hand dat die Eerste respondent se optrede nie net ongrondwetlik is nie maar ook administratiefregtelik onregverdigbaar en sonder konsultasie met my mediese praktisyns.

9. In die vooropstelling smeek ek die Agbare Hof om hangende die finalisering van my mediese raad my voordele te herstel aangesien daar geen basis is waarop die Eerste Respondent dit op hierdie stadium eensydig en sonder ‘n behoorlike proses kan opskort nie ( my own emphasis).

[15] What is said by the applicant in my view is exactly what Ngcobo J in Chirwa’s matter said an employee cannot seek to avoid the dispute-resolution mechanisms provided for in the LRA by alleging a violation of a Constitutional right in the Bill of Right and that it would not have been the intention of the Legislature to allow an employee to raise what is essentially a labour dispute under the LRA as a Constitutional issue under the provisions of section 157(2) and lastly, that to hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute resolution provisions of the LRA.

[16] Two things, it is common cause that the complaint raised by the applicant is a labour dispute, secondly, that the applicant is subject to the dispute-resolution provisions of the LRA.

[17] The decision in Chirwa’s matter has rendered the submission made on behalf of the applicant to be completely out in line with a decision which is binding on this court. The effect of this decision is that, this court does not have jurisdiction to deal with the matter.

[18] The Labour Court in terms of section 158 has the power to make an appropriate order within its domain, including the power to grant urgent interim relief.

19. Consequently the applicant’s application is hereby strike off from the roll with costs.

M F LEGODI

JUDGE OF THE HIGH COURT

BERTUS VESTER ATTORNEYS

Attorneys for the Applicant

c/o DU PLESSIS & KRUYSHAAR ATTORNEYS

Loftus Versfeld, South Paviljoen

2^nd Floor, Room 6

LYNNWOOD ROAD

PRETORIA

012 662 3571

THE STATE ATTORNEY

Attorneys for the Respondents

Bothongo Heights, 8^th Floor

167 Andries Street

PRETORIA

012 309 1567

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