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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE

19 MARCH 2008 CASE NO: 42117/06

In the matter between:

TSHIBVUMO PHANUEL CORNWELL APPLICANT

TSHAVHUNGWA

And

NATIONAL DIRECTOR OF PUBLIC FIRST DEFENDANT

PROSECUTIONS

MINISTER OF JUSTICE AND

CONSITUTIONAL SECOND DEFENDANT

LEONARD FRNAK Mc CARTHY THIRD RESPONDANT

JUDGMENT

MAVUNDLA J.,

[1] This matter raises fundamental issues, inter alia, administrative review and applicability of PAJA, the jurisdiction of the High Court and that of the Labour Court, whether the National Director of Public Prosecutions has the right to terminate the services of a Deputy National Director of Public Prosecutions. Some of the issues are raised as points in limine. Because of the complexity of the issues in casu, I allowed the parties to address me on all the issues including the merits, without me having to first deal with the points in limine. This approach was calculated to spare the respective parties time and costs of having to return to address me on the merits, in the event I do not uphold the points in limine.

[2] The applicant is challenging, inter alia, the validity of the decisions of the first and the third respondents: firstly, suspending him with pay, and: secondly, suspending him without pay and finally terminating his services. He seeks an order declaring these decisions to be void ab initio and that the third respondent does not have authority to terminate his services nor to alter the terms of his conditions of service.

The applicant, during argument, and consonant with his replying affidavit¹, submitted that this Court should make the decision of the second respondent an order of the Court. It is common cause that the second respondent’s view was that only the second respondent has the authority to terminate the services of the applicant and that the first and second respondents should have the applicant reinstated and disciplinary proceedings be commenced afresh. The applicant relies on the violation of his constitutional right to administrative action in advancing this point.

BACKGROUND FACTS

[3] In his founding affidavit the plaintiff states, inter alia, that he was appointed as Deputy Director of Public Prosecutions with effect from 1 November 2002. He is a member of Senior Management Services (SMS).On 15 March 2004 he was called to a meeting at the offices of the National Director where in attendance, inter alia, were Advocates Ledwaba, Nel the third respondent, Mr. B T Ngcuka and Ms Dlolo. In this meeting he was informed that there were certain allegations that were reported against him and that it was the feeling of Mr. Ngcuka that these allegations must be investigated and that he should be given special leave for 14 days. On 31 March 2004² he was served with a suspension letter dated 30 March 2004 with full emoluments.³ On 27 May 2004 the applicant was per annexure CT4⁴ served with a notice of a disciplinary hearing. On 7 June 2004 the appellant was arrested on allegations of corruption. He was released on bail in the amount of R100 000,00 on the 8 June 2004, only to be re-arrested for having contravened his bail conditions. He remained in custody until he was subsequently released during the end of November 2005. He was on 21 June 2006 served with an amended notice of disciplinary hearing.⁵ He was informed per letter dated 4 August 2004 addressed to his attorneys that he was suspended without pay⁶. In the said letter it was stated, inter alia, that he was being suspended without pay on the basis that he would be reimbursed for the accrued salary which he was not paid during the period of suspension, should the presiding officer find in his favour. His salary was stopped by Mr. R Pather with effect from 15 August 2004. His services as such were terminated with immediate effect as from 20 December 2004.⁷ The said termination, he was advised, was in terms of section 7.2 of the Resolution 1 of 2003 of the Disciplinary Code and Procedure of the Public Services. Annexure CT18 is a letter dated 20 December 2004 by the Chief Executive officer Ms. M Sparg, addressed to the applicant informing him that he had been afforded an opportunity to provide written representations for the retention of his service, which adequately complied with the audi alteram partem rule. The letter further states that: Your failure to furnish grounds for the retention of services has informed the employer’s decision to terminate your services on the basis of your inability to fulfil your contractual obligations to the NPA as well as the operational requiremenrs of the organization.”This letter further informed him of his right to appeal within 5 working days of receipt of the said letter as per Resolution 1 of 2003.

[4] The applicant, on 10 September 2004, through his attorneys, made representation to the first respondent with regard to his release on bail, his suspension without pay as well as for the appointment of a neutral chairperson in regard to his labour matter. He also furnished reasons to the NPA why his suspension without pay was unlawful. On the very same day a joint request was signed and sent to the General Public Service Sectorial Bargaining Council (PSCB) for the appointment of a chairperson for the disciplinary hearing. The applicant also took the issue of his suspension without pay up with the Public Service Bargaining Council and a hearing was scheduled for the 3 November 2004. The first respondent did not attend the hearing of 3 November 2004. The applicant obtained a certificate of non-resolution of dispute.

[5] On 29 September 2004 the GPSSBC appointed Adv Moletsane to preside over the hearing which was scheduled for 10,11and 12 November 2004. According to the applicant, in a meeting attended by Ms. Simelane and Mr. Pather on 15 October 2004, a decision was taken to cancel the disciplinary hearing scheduled for the 10,11,12 November 2004. In another meeting of 3 November 2004, again Ms Simelane and Mr. Pather decided to inform the GPSSBC that the disciplinary hearing of 10, 11 and 12 November 2004 would no longer be proceeded with. An unsigned and undated letter, purporting to emanate from one Ms Ramoshaba was faxed to GPSSBC cancelling the disciplinary hearing scheduled for 10,11and 12 November 2004. The applicant states that such cancellation was unlawful, fraudulent and mala fide because Ms Ramoshaba was not at work on the alleged date on which the letter was written . He further states that neither the third respondent nor Mr. Pather nor Ms. Simelane had the authority to cancel the hearing.

[6] The applicant’s case is further that the termination of his services on

20 December 2004 was unlawful because an employee’s employment cannot be terminated on account of imprisonment of the employee. He says that a disciplinary hearing must be held after the release of the employee from prison. In this case, he says that the disciplinary hearing was not held but postponed by Ms. Simelane until after the finalization of his criminal case and also cancelled. He further says that Mr. Rhoode who had informed him per letter dated 3 December 2004 (annexure CT17) that he is contemplating to terminate the applicant’s services, was not authorised to make such decision and was not the applicant’s employer. With regard to the invitation by Rhoode that he must submit representation for the retention of his work, the applicant states that he did not honour this invitation because he had intended to do so in his disciplinary hearing. He further states that Rhoode’s assertion that the applicant was unable to perform his contractual obligations, as stated in annexure CT17, well knowing that the applicant had been suspended and such suspension still stands, is clear evidence of mala fides on the part of Rhoode.

[7] The applicant further states that the third respondent has no power to appoint nor to dismiss a Director of Public Prosecutions. He can only exercise the powers and duties referred to in Chapter 5 of the Act, section 7 and 19A(1), and or any other power, duties or functions that the National Director authorised him to perform. He further states that the third respondent did not have power to call meetings, like the ones held on 15 October 2004 and 3 November 2004, during which it was decided to cancel the disciplinary hearing that was to be held in accordance with the procedure in Resolution of 2003, which was by agreement scheduled by agreement in a weeks time.

[8] The applicant says further that with regard to internal remedies, shortly after his release from prison (in November 2004), he decided to collect and collate all necessary evidence and information at his disposal, in order to bring this matter to the attention of the second respondent. He could not bring a review application to court without giving the second respondent an opportunity to address the matter. He was not aware that the second respondent would take the whole year, awaiting the response of the first and third respondents, before making a meaningful response to him. He addressed a letter to the second respondent on 5 January 2006 requesting her to intervene in this matter. The applicant refers to various letters between himself, his attorneys and the office of the second respondent, regarding his request for intervention by the second respondent. Nothing of substance turns around these letters. For purposes of this judgment I deem it not necessary to chronicle these herein. It suffices to state that the applicant was per letter⁸ dated 6 October 2006 once again informed by the chief legal researcher from the office of the second respondent, that the second respondent was still awaiting a report from the first respondent and that once same was at hand a meaningful response will be furnished. The applicant says that the first respondent per letter⁹ dated the 6 November 2006 advised his attorneys that the report has since been furnished to the second respondent. The applicant states that the delay on the part of the second respondent, on the guise that she was awaiting a report, which she had already received, was mala fides on her part. He says that he had a legitimate expectation that the second respondent would intervene and reverse the unlawful action he was complaining. He says further that approaching the second applicant was the internal remedy which he had to exhaust.

[9] The applicant says further that the second respondent cannot defend the unlawful actions that she was requested to rectify. He further says that the first respondent, the National Director did not take personally take any of the decisions complained about. He says that the actions are grossly unlawful and were taken by the functionaries without the authority to act as such. He requests that this Court should find that the delay for almost a year on the part of the second respondent, namely to stop the prejudice caused by the unlawful action taken mala fides, her failure to respondent to his representation, is an unlawful administration action. He says that his dismissal can only be done in terms of the procedure in Resolution 1 of 2003.

[10] The first and third respondents in opposing the application, have taken two points in limine, firstly that the application is prima facie an administrative review and that therefore it falls to be dealt with in terms of PAJA and that the applicant has inordinately delayed¹⁰ in bringing the application as he failed to do so within 180 days as required in terms of section 7(1) of PAJA.¹¹ In the alternative, in the event it were to be held that PAJA does not apply but common law does, the first respondent and the second respondent contend that the application should still be dismissed due to undue delay.

[11] The second point taken by the first respondent and the second respondent is that there is doubt that this Court has jurisdiction in this matter. They contend that since the attack of the applicant is the validity of his dismissal (contraventions of Resolution No 1 of 2003 (annexure CT2) which is an agreement concluded by the parties to the Public Service Central Bargaining Council (“PSCBC”), which is a collective agreement as defined in section 213 of the Labour Relations Act no 66 of 1995 (the Act”), this might point to a conclusion that the LRA does not confer exclusive jurisdiction on the Labour Court. However, on the approach of Conradie JA in the matter of Chirwa, where he took the view that, the statutory intention of the legislature is that every statutory dismissal of an employee from the service of an organ of State or the State itself should be adjudicated by the Labour Court and not the High Court. They submit that the applicant should have approached the Labour Court for the relief he seeks and that this Court does not have jurisdiction over this matter.

[12] On the issue of lack of authority to dismiss the applicant, the first and third respondents point out that the applicant was appointed as a Deputy Director of Public Prosecutions by the Minister (the Second Respondent) in terms of s19 of the National Prosecution Authority Act 32 of 1998, although his conditions of service are determined in terms of the provisions of Public Service Act, the applicant was not a public servant in terms of, nor subject to the Public Service Act. They maintain that applicant was accountable to the third respondent and subject to his control and that therefore the first and third respondents have the authority to dismiss the applicant, although the NPAA does not explicitly state so.

[13] Before interrogating the points in limine, it is, in my view, necessary to look at the legislative source of power of the first respondent and the second respondent, in respect of the termination of the services of the applicant. The points in limine, in the context of the facts of this case, cannot be determined in isolation and without having regard to the source of power the first respondent and third respondent and their respective functionaries on the basis of which they have acted. For that purposes, I need to look at what the second respondent says.

[14] The second respondent has filed an answering affidavit as well, through Mr. Menzi Simelane. It is pointed out therein that the stance of the second respondent is that the power to terminate the services of the applicant vests with the Minister of Justice and Constitutional Development . The second respondent notes that the first and third respondents maintain that they too have the authority to terminate the services of the applicant. The second respondent has taken the view that the applicant should be re-instated and that disciplinary proceedings be instituted against the applicant. The second respondent further is of the view that she cannot however impose her view on the first and third respondents.

[15] The applicant’s appointment is in terms of s15 of the NPAA¹². S15 empowers the Minister to appoint a Director of Public Prosecutions, after consultation with the National Director of Prosecution. The Minister must be of the opinion that such a person is suitable for the appointment,¹³ before the Minister can appoint such a person. There is no other clearer indication than this, showing that it is only the Minister who has the power to appoint a Deputy Director.

[16] The first and second respondent rely on the provisions of Section 179¹⁴ of the Constitution of the Republic of South Africa, Act 108 of 1996 and section 22 of NPAA as the fons of their authority to terminate the services of the applicant. Section 179(2) of the Constitution is the fons of power to prosecute. This section creates the primary purpose of the National Director of Prosecutions, which is nothing else but prosecutions. Any incidental act must be related towards prosecution. The powers and duties of the National Director is regulated by s22¹⁵ of Act 32 of NPAA. This section says nothing about any appointing or terminating of services of any Deputy Director. S19,¹⁶ of Act 32 of NPAA deals with the conditions of service of the Deputy Directors and nothing more. In my view, if it was the intention of the legislature to accord the National Director powers to employ and or terminate the services of a Deputy Director, it would have said so in no uncertain terms. Any construction and or interpretation of these sections which I have referred to herein above, which is contrary to what I have stated would be stretching the purpose and objects of these section rather too far. The National Director’s main function is primarily about prosecution.

[17 In as much as the NPAA is silent about who has the power to terminate the service of the Deputy Director, in the matter of Masetlha v President of the Republic of South Africa & another¹⁷ Ngcobo J stated that:

“It seems to be a sound principle of constitutional or statutory construction that, in the absence of constitutional or statutory provisions to the contrary, the power to remove must be considered to be incidental to the power to appoint.”

Moseneke DCJ in the same matter put it as follows:

“The power to dismiss is necessary in order to exercise the power to appoint… That is why the power to dismiss is an essential corollary to the power to appoint.

[18] In my view, it is axiomatic that, if the Minister must be of the opinion that the person possesses such experience to render him suitable to be appointed as a Deputy Director, equally so must the Minister be of the opinion that the Deputy Director is no longer suitable to hold that particular office. It is also axiomatic that if the Minister is empowered to appoint such person whom she is of the opinion that he/she is suitable to be so appointed, equally so does she have the power to terminate the services of such a person, who she is of the opinion that he is no longer suitable to hold such office as a Deputy Director. Since the Minister must take the decision to appoint, after consultation with the National Director, I am of the view that the National Director, at best can only bring facts to the attention of the Minister, which facts would enable the Minister to formulate an opinion that such a person is no longer suitable to hold such an office. Once the Minister has formulated such an opinion, it is only then that the Minister can take a decision to terminate the services of that particular Deputy Director.

[19] In casu the services of the applicant were terminated by EXCO, which structure is not constituted by the NPAA. In my view, EXCO cannot exercise powers which the first respondent does not possess. Any purported termination of the services of the applicant by this structure or even by the first and third respondent must therefore be unlawful and invalid since there in no legislative framework in terms of NPAA authorising them to take such a decision. Vide Fedsure Life Assurance v Greater Johannessburg TMC.¹⁸ I am accordingly of the view that, in the circumstances of this case, only the Minister had the power to terminate the services of the applicant and therefore the termination of his services was unlawful and invalid.

[20] Although the termination of the services are unlawful and invalid, from the reading of Oudekraal Estates (Pty) Ltd v City of Cape Town and Others¹⁹ the Court held the view that an invalid act is liable to be set aside in proceedings properly brought for judicial review, and that the Court so approached can exercise its discretion. In the exercise of its discretion the court will have regard to the long period that has lapsed since approval of such invalid administrative act. The court must also balance all the relevant circumstances pertaining to the granting of such invalid act²⁰. Such an invalid act cannot be ignored.

[21] This brings me to the first point in limine that has been raised by the first respondent and the third respondent; vide para [10] supra. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs²¹ that: (The Court’s power to review administrative action no longer flows directly from common law but from PAJA and the Constitution itself. The groundnorm of administrative law is now to be found in the first place not in the doctrine of ultra vires, nor in the doctrine of parliamentary sovereignty, nor in the common law itself, but in the principles of our Constitution. The common law informs the provisions of PAJA and the Constitution, and derives its force from the latter. The extent to which the common law remains relevant to administrative review will have to be developed on a case-by-case basis as the Courts interpret and apply the provisions of PAJA. O’Regan J further pointed out that section 6 of PAJA codifies the grounds of judicial review of administrative action as defined in PAJA, and that litigants must clearly state the facts and the grounds upon which they seek review.

[22] In my view, the actions complained of by the applicant, fall squarely within the ambit of section 6,²² such as those taken by EXCO, which action: it was not authorised by the empowering provisions of NPAA(6(2)(i)) to take, was unlawful and invalid, or the action of the first respondent and the third respondent in terminating the services of the applicant was unlawful. These actions complained of include the decisions taken to have the applicant suspended with and later without salary, and of course the subsequent dismissal.

[23] The actions complained of are administrative actions by nature, and fall within the ambit of PAJA. Like in the Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs²³ (supra) the applicant in casu in his founding affidavit he did not rely on PAJA, he has, however, in his replying affidavit mentioned that he relies on PAJA. His failure not to have stated in his founding affidavit that he relies on PAJA, does not mean that I should find that his papers were fatally defective. Section 7²⁴of PAJA requires that judicial review must be brought within 180 days from the date the applicant became aware of the decision complained of. In the matter of Ntame v MEC, Dept Soc Dev; Mnyaka v MEC, Dev Soc Dec²⁵said:

“The majority judgment of Miller JA in Wolgroeirs Afslaer (Edms) Bpk v Municipaliteit van Kaapstad²⁶sets out the proper approach to the question of undue delay; first a court must decide whether the proceedings were brought within a reasonable time and, secondly if not, it must decide whether unreasonable delay ought to be condoned, in which event it must exercise a discretion taking into account all relevant factors including, but not limited to, prejudice to the respondent.)²⁷It is also important to note that in Nichol and Another v Registrar of Pension Funds and Others²⁸ Van Heerden JA said:

“Under common law, the mere existence of an internal remedy was not, by itself sufficient to defer access to judicial review until the remedy had been exhausted. Judicial review would in general only be deferred where the relevant statutory or contractual provision, properly construed, requires that internal remedies first be exhausted. However, as is pointed out by Ian Currie and Jonathan Klaaren,²⁹ ‘by imposing a strict duty to exhaust domestic remedies [PAJA] has considerably reformed common law’. It is now compulsory to for the aggrieved party in all cases to exhaust the relevant internal remedies unless exempted from doing so by way of a successful application under s7(2)(c). Moreover, the person seeking exemption must satisfy the court of two matter: firstly, that there are exceptional circumstances, and secondly, that it is in the interest of justice that the exemption be given.³⁰

[24] The applicant, as already stated in paragraph [3] supra, was on 31 March 2004 served with suspension with emoluments letter. He was again on 4 August 2004 served with suspension without pay letter. On 20 December 2004 he was informed of the termination of his services. It is common cause that the applicant was arrested on allegations of corruption on 7 June 2004. He was released on bail on 8 August 2004. However, he was rearrested for breaching the bail conditions and he remained in custody until he was released towards the end of November 2005. Subsequent to his release, according to him, he embarked on collecting and collating information for purposes of bringing same to the attention of the second respondent. He eventually decided to bring this application on 19 December 2006. Clearly, the application was brought long after the period of 180 days referred to in section 7 of PAJA. To be precise, the application was brought more than two and a half years, if one takes the starting point (the date he first became aware of the decision he is aggrieved of) as 31 March 2004, or almost after two years if one takes the starting point as being the 20 December 2004. In my view, the delay is in casu is unreasonable.

[25] The applicant is not a lay person. Indeed, he is, as I observed when he was making his submissions, an astute competent and seasoned dully admitted advocate of this Court. Although the applicant had been incarcerated at one stage, he was eventually released from custody during November 2005. After his release from custody he did not approach the court immediately. He decided to collect and collate information for purposes of bringing his dilemma to the attention of the second respondent. He wrote a letter to the second respondent as early as on 5 January 2006. Once it became clear that the second respondent is not responding in any meaningful fashion, there was no reason for the applicant to wait until in December 2006 before approaching Court for necessary relief. With his legal background, the applicant, in my view, should have known that it was not a pre-requisite to seek the intervention of the second respondent before approaching the Court. The fact that at one stage he was incarcerated, that itself is not an excuse because he was not denied access to attorneys during that period. He could still have given instructions to attorneys whilst in custody to approach this court on his behalf. The law permits that I may, in the exercise of my discretion, condone the unreasonable delay of the applicant in bringing these proceedings. There is no application for condonation. I need to take this factor into consideration as well. Having regard to the fact that the applicant is not a lay person, the fact that there is no application for condonation, the unreasonable period of delay, as stated herein above, I am unable to find that this is a matter where I should exercise my discretion in favour of the applicant. The delay is unduly inordinate and the reasons that occasioned such delay are unjustifiable and cannot be condoned.

[26] I have taken note of the applicant’s submission that this point in limine is predicated by a material misrepresentation and nondisclosure of the fact that the second respondent has decided that the applicant should be re-instated and that this Court is not requested to order the reinstatement of the applicant. He says the decision to have the applicant re-instated has already been taken by the second respondent. He says that a decision by this Court on this point would be superfluous.

[27] In regard to the material misrepresentation and nondisclosure he refers to the matter of Moila v Fitsgerald & Another³¹. I must point out that Bertelsman J in the aforementioned matter of Moila, was considering the question of punitive cost and he took the nondisclosure, inter alia, into consideration in awarding the punitive costs. The applicant also referred me to the unreported decision in the matter of Mohale v Directorate of Special Operations & Others, delivered on 27 January 2005 where this Court said:

“In view of the fact that the relevant search was preceded by warrants which I found to have been ultra vires and therefore unlawful, the search and seizure at the aforementioned premises was contemporaneous with the said search and cannot be looked at in isolation and differently. The applicants were cooperating with the respondents, as they believed that they were obliged to do so. That cooperation does not imbue the unlawful search and seizure with the efficacy of lawfulness, nor did it take away their right to challenge the lawfulness of such search and seizure. I am therefore of the view that the relevant search and seizure is unlawful”. I need point out that even if an act is unlawful, it must still be set aside by the Court. It cannot be ignored by those who are affected by such unlawful act. Neither can those who are affected by such an unlawful act afford the laxity to go into slumber, instead of taking appropriate steps to have such decision set aside, simply because the decision is unlawful, vide Cape Town & Others v Oudekraal Estate Pty Ltd (supra).

[28] Taking the above authorities into consideration, I am of the view that the first point in limine ought to be upheld and the application ought to be dismissed on this point. Assuming that I am wrong on this point, which I do not concede, I shall then proceed to look at the second point in limine.

[29] This then brings me to the second point in limine that has been raised on behalf of the first and third respondents. The question whether public employees, like the applicant in casu, upon the termination of the contract of service by their employer/s, can approach the High Court or they must approach the Labour Court has been a raging one in our courts, with divergent views and decisions. This is manifested in the matter of Transnet Ltd and others v Chirwa³² where the five judges expressed different views, as it clearly is demonstrated in the judgment of Cameron JA. He cautioned that ordinary courts should be careful in employment-related matters not to usurp the remedial role and special aptitudes of the Labour Courts: public employees may properly be discouraged from having recourse to the ordinary

courts in such matter.

[30] Cameron JA points out that Mthiyane JA, with Jafta JA, concurring, took the view that that ordinary courts have jurisdiction to entertain the employee’s claim but dismissed the claim on the basis that it did not constitute administrative action under PAJA since the contract lacked public character. He then went on to point out that Conradie JA (with whom Mphati JA concurred) accepted that the ordinary courts have jurisdiction, and was willing to accept that the dismissal was an “administrative action” on the part of Transnet, and found that the employee has no cause of action under.

[31] Cameroon further pointed out the divergent views, as articulated by Murphy AJ (as he then was) in the matter of SA Police Union v Commissioner of SAPS (2005) 26 ILJ 2403 (LC) where he pointed out that the “Constitution draws an explicit distinction between administrative action and labour practices as two distinct species of judicial acts, and subjects them to different forms of regulation, review and enforcement; employment-related decisions by an organ of State do not constitute administrative action under PAJA.”, as opposed to that of Plasket J in the matter of Police and Prisons Civil Rights Union and Others v Minister of Correctional Services and Others (2006) 27 ILF 555 (E) ([2006] 2 ALL SA 175) (where) dismissal were at issue) (an organ of State in exercising the power to dismiss engages in administrative action under PAJA cognisable in the High Courts).” He aligned himself with the views of Plasket J and concluded that the Constitution permits an employee of a public body to approach the ordinary court when he seeks relief for dismissal-related injustices that constitute an administrative action.

[32] He further stated that:

“[51] It is hard to see why the decision of a State organ to dismiss an employee does not constitute administrative action. Indeed, as a matter of doctrine, this Court, more than a decade and a half ago, so held. In Administrator, Transvaal, and Others v Zenzile and Others ³³ it unequivocally rejected the argument that a public body's decision to dismiss falls beyond the reach of administrative law and the rules of natural justice. It held that it was 'logically unsound and wrong in principle' to postulate that administrative law principles have no application to 'purely contractual relations': rather, it held, the existence of a contract cannot alter the essential nature of the parties' relations. This Court therefore affirmed that when public bodies dismiss employees, one is concerned -

'not with mere employment under a contract of service between two private individuals, but with a form of employment which invests the employee with a particular status which the law will protect. Here the employer and decision-maker is a public authority whose decision to dismiss involved the exercise of a public power. The element of public service injected by the statute necessarily entails, so I consider, that the [employees] were entitled to the benefit of the application of the principles of natural justice . . . . '³⁴

[52] Despite the allusion to 'the statute', it is in my view of no significance that the employee's contract of employment, or Transnet's authority to employ her, did not derive from a particular, discernible, statutory provision. Transnet is a public entity created by legislation and operating under statutory authority. It would not exist without statute. Its every act derives from its public, statutory character, including the dismissal at issue here. The doctrine propounded in Zenzile, and the cases that followed it, was that employment with a public body attracts the protections of natural justice because the employer is a public authority whose employment-related decisions involve the exercise of public power. That power is always sourced in statutory provision, whether general or specific, and, behind it, in the Constitution. Its exercise therefore constitutes administrative action. That reasoning is as compelling today as it was a decade and a half ago.

[53] Zenzile pre-dated both the Constitution and PAJA, but far from superseding it, they seem to me merely to have confirmed its authority. This Court has recently observed, in the light of the constitutional right to administrative justice, its embodiment in PAJA, and Constitutional Court decisions, that administrative action is, in general terms, the conduct of the bureaucracy in carrying out the daily functions of the State (which here includes Transnet), which necessarily involves the application of policy, usually after its translation into law, with direct and immediate consequences for individuals or groups of individuals. Rejecting an argument that a policy-based decision to rent out State property did not constitute administrative action, Nugent JA observed that the decision was made 'in the exercise of a public power conferred by legislation, in the ordinary course of administering the property of the State, and with immediate and direct legal consequences'. 11 The same approach applies here. The decision to dismiss the employee was made in the exercise of public power, conferred by legislation, in the ordinary course of administering the business of Transnet (and, through it, the State), and had immediate and direct legal consequences. It was therefore administrative action under PAJA.”

[33] Cameron JA proceeded to hold the view that the action of Transnet in dismissing Ms Chirwa, “is trenched on two constitutional rights: her right to fair labour practice, and her right to just and administrative action” and concludes that the fact that an employee has remedies under the LRA and under Constitution and PAJA, that does not preclude the employee in approaching the ordinary court in vindicating his or her rights under PAJA. He is of the view that the introduction of PAJA augmented the rights of the employee rather than truncating them and that if that was the intention of the Legislature, such intention would have been so stated.³⁵

[34] The divergence of views in the above matter resulted in the matter of

Jordaan v Legal Aid Board³⁶ Hatzenberg J stating that:

“[8] An analysis of the three judgments indicate that four of the five judges accepted that an employee may enforce his/her right to a fair administrative procedure, in terms of PAJA, in the ordinary courts and that there is concurrent jurisdiction with the labour courts. It is only Conradie JA who does not recognize the that right because of his interpretation of the legislation, in the light of the development thereof since 1991. Three of the five judges accept that the decision by an organ of state, to dismiss an employee, constitutes administrative action in terms of S1 of PAJA. On a pure head court is bound to find: (1) that s157 (2) of the LRA empowers it to hear the review application, provided the disciplinary hearing constituted administrative action; and (2) that the disciplinary hearing, by an organ of the state, which may lead to the dismissal of an employee, constitutes administrative action.” He went further to agree with

Cameroon that the Zenzile case has not been overruled in the Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others 2001 (3) SA 1013 (SCA) ((2001 (10) BCLR 1026) matter. . Hartzenberg J further agrees with Cameroon JA that the individual’s PAJA rights can only be exclude by the legislature in very clear terms, which has not been done. He held that the High Court has jurisdiction to hear the review application in that matter and proceed to do so.

[35] In an unreported judgment in the matter of Barend Christian Nell v Minister of Justice and Constitutional Development and another³⁷ Southwood J stated that:

“[19] In my view it is wrong to characterise a matter as a labour dispute or as an administrative law dispute and then decide that the dispute must be decided in accordance with the relevant body of law. The power of the court to review administrative action flows direct from PAJA and the Constitution itself- see Bato Star Fisheries (Pty) Ltd v Minister of Environmental Affairs & Tourism [2004] ZACC 15; 2004 (4) SA 490 (CC) at 22- and power of the court to review administrative action will depend upon whether PAJA applies to the action concerned. As pointed out in Cape Metropolitan v Metro Inspection Services (Western Cape) CC and Other supra at 16, section 33 of the Constitution is not concerned with every act of administration performed by an organ of State. It is designed to control the conduct of the public administration: i.e. when it exercises public power. In para 17, the court said that whether or not conduct is “administrative action” would depend on the nature of the powers exercised and certain other considerations…It is clear from this case and the Zenzile and Sibiya judgments that conduct may constitute administrative action even when it takes place in a contractual context.”

[20] In Zenzile and Sibiya the court held that the termination of an employee’s contract by the state organ concerned involved the exercise of a public power and that their employees were entitled to the application of the principles of natural justice before they could be summarily dismissed for misconduct. The basis of this finding was that there was no mere employment under a contract of service between two individuals but a form of contact which invests the employee with a particular status which the law will protect. In the present case the respondent does not contend that the applicant is not a party to the such a contract It was common cause that he was employed by the Department and is a public servant.” He went further to look into the section 6 of PAJA and

concluded that the definition of court therein includes the High Court.

[36] This issue of concurrent jurisdiction also attracted the attention of the Supreme Court of Appeal in the matter of Legal Aid Board v Jordaan³⁸ where the Court through Farlam JA said:

“[6] In the present case it goes without saying that the High Court will have jurisdiction to decide what I understand will be one of the issues arising in the main application, viz whether the disciplinary enquiry instituted by the applicant constituted administrative action under the Promotion of Administrative Justice Act 3 of 2000. To answer that question the High Court will have to decide which of the divergent views expressed in the recent decision of this Court in Transnet Ltd and Others v Chirwa 2007 (2) SA 198 (SCA) ((2006) 27 ILJ 2294; [2007] 1 All SA 184; [2007] 1 BLLR 10) was correct. That being so, unless there is a statutory provision ousting its jurisdiction to give interim relief in a case such as this, there can be no question as to the High Court's jurisdiction to grant the order presently under consideration. Counsel for the applicant contended that the High Court's jurisdiction to grant the interim order sought in this matter was ousted by s 157(1), read with s 158(1)(a)(ii) and (iii), of the Labour Relations Act 66 of 1995.

[7] Section 157(1) and s 158(1)(a) read as follows:

'157(1) Subject to the Constitution and s 173 [which deals with the Labour Appeal Court], 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.'

'158(1) The Labour Court may -

(a) make any appropriate order, including -

(i) the grant of urgent interim relief;

(ii) an interdict;

3. an order directing the performance of any particular act which order,

when implemented, will remedy a wrong and give effect to the primary objects of this Act;

(iv) a declaratory order;

(v) an award of compensation in any circumstances contemplated in this Act;

(vi) an award of damages in any circumstances contemplated in this Act; and

7. an order for costs.' “ Farlam JA further rejected the submission that section 157 (1) and 158 (1) (a) ousted the High Court’s jurisdiction to grant the interim order that was sought.”

[37] In the matter of Masetlha v President of the Republic of South Africa & another³⁹ (Du Plessis J stated that:

“ In terms of s33(1) of the Constitution everyone has the right to just administrative action. PAJA is the national legislation that gave effect to this right in accordance with s33(3) of the Constitution. PAJA defines administrative action and provides for the courts‘ power to review such action. Specifically excluded in the definition of administrative action are the ‘executive powers or functions referred to in s85(2) (e) of the Constitution. He went to conclude that the decision of the President to appoint and dismiss the Director of National Intelligence Agency constituted an exercise of executive power and that it is not subject to review under PAJA. He however pointed out that it does not follow that the decision to dismiss is not subject to review at all. He stated that s1(c) of the Constitution, the rule of law is the founding principle of the Constitution and it is one of the founding values of the Republic. The Constitutional Court has repeatedly held that the exercise of public power, including executive action, must conform to the principle of legality and that the courts have the power to enquire to the legality of such action (see for instance Fedsure Life Assurance & v Greater Johannesburg Transitional Metropolitan Council &others [1998] ZACC 17; 1999 (1) SA 374 (CC) at paras 56-58; President of the Republic of S A & other v Ruby Football Union & other 2000 (2) SA 1 (CC) at para142-148, Phamaceutical Manufacturers Association and another: In re Ex Parte President of the Republic of SA & others [2000] ZACC 1; 2000 (2) SA 674 (CC) at para 85). The exact ambit of review for want of legality might not have been finally determined, but for present purposes it suffices to point out that, in order for the exercise of public power to be lawful, it must not be exercised mala fide and it must not be exercised arbitrarily or irrationally (see for a summary, De Ville Judicial Review of Administrative Action in SA at 60).”

[38] It would seem that the issue of concurrent jurisdiction is far from settled, since some of the judgments that I have referred to herein above recognize concurrent jurisdiction and leave it to the court to decide on the facts of that particular case as to which trench they fall into, an approach, Southwood J does not countenance. This divergence of views prompted Skweyiya J in as yet unreported Constitutional judgment in the matter of Chirwa v Transnet and another⁴⁰, to say:

“[71] To the extent that PAJA and 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 s157(2) of the LRA to ensure development of a coherent framework within which all labour disputes may be speedily resolved.”⁴¹

[39] Whilst recognizing the concurrent jurisdiction of the High Court and the Labour Court, both Skweyiya and Ngcobo JJ⁴² are of the view that forum shopping must not be countenanced and that once a litigant has commenced an action challenging his or her dismissal by his or her State or State organ employer, at a particular forum, he or she must conclude those proceedings in that particular forum of first choice and that it is impermissible to do forum shopping. They seem to be preferring that such matters must be adjudicated at the Labour Court.

[40] With regard to the trenching into two constitutional rights, the right to fair labour practice, and the right to just and administrative action” Ngcobo J took the view that “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.”

[41] Skweyiya J further pointed out that in the matter of Zenzile and Others, 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 national justice. Skweyiya J takes the view that only acts of an administrative nature are subject to the administrative justice right in section 33 of the Constitution.

[42] Ngcobo J⁴³, agreeing with Cameron JA, is of the view that a dismissal of a public employee by a public authority is an administrative act because the functionaries of the public authority when they so dismiss the public employee, they exercise a public power. He further states that whether a particular conduct constitutes administrative action must be determined by reference to section 33 of the Constitution which confines its operation to “administrative action. The fact that in terminating the public employee’s contract of employment involves a public power is not decisive of the question whether the exercise of the power in question constitutes administrative action. He says that to determine whether a conduct is subject to review under section 33 and thus PAJA, the threshold question is whether the conduct under consideration constitutes administrative action or not. ⁴⁴

[43] In the Chirwa matter Ngcobo looked at the facts of that case and concluded that the fact that Transnet is a creature of statute does not detract from the fact that when it terminated the employment contract of Ms Chirwa, it was exercising its contractual powers and this did not involve the implementation of legislation which constituted administrative action, and such conduct of dismissal did not amount to administrative action, but concerned with labour and employment. He further held that the mere fact that Transnet is an organ of State which exercise public power does not transform its conduct in terminating the employment agreement into administrative action. He says that section 33 is not concerned with every act of administration performed by an organ of State. He concluded that Transnet did not perform an administrative action under section 33. He says that the Constitution draws a clear distinction between administrative action and that these fall under category of public law on the one hand, and employment action and labour relations actions and that these fall under category of labour law. He says that the termination of a public sector employee does not constitute administrative action. He points out that the Constitution contemplates that these two categories will be subjected to different forms of regulation, review and enforcement. Labour related matters are dealt in terms of section 23 of the Constitution, which contemplates that these would be regulated through collective bargaining and adjudication of unfair labour practices. He says that section 23 contemplates that employees in general, be they from the private sector or public sector will be governed by it. The underlying principle of section 23 is that the resolution of employment disputes in the public sector will be resolved through the same bargaining and adjudication of unfair labour practice mechanism as in the private sector as opposed to judicial review of administrative action. He points out that section 23 deals with labour relations acts and that it guarantees to every employee, including public sector employees, the right to a fair labour practices. He further points out that the LRA and the Basic Conditions of Employment Act of 1997 have codified labour and employment rights so as to give effect and regulate the fundamental right to fair labour practices conferred by section 23 of the Constitution. He further states that such codification of labour and employment rights such as such as the right to a fair hearing, substantive fairness and remedies for non-compliance make it no longer necessary that public employees be treated differently and subjected to the protection of administrative law. He says that section 33 of the Constitution does not deal with labour and employment relations and that therefore there is no longer a need to have any distinction between the public sector employees and private sector employees. On this reasoning, it can therefore be concluded that a public sector employee who has been dismissed, as is the case with the applicant, must have his challenge to his dismissal adjudicated in the specialized court for such matters, which specialised court is the Labour Court. By way of induction it can therefore be concluded that the jurisdiction of the High Court would therefore be excluded. The conclusion that I must arrive at, on the approach advocated by Ngcobo J, whose judgment is the majority judgment of the Constitutional Court, is that the applicant should approach the Labour Court and not the High Court.

[44] In casu, once I have found that the structure that terminated the services of the applicant is not authorised by any statute, it then means that there is no public power that was employed, and for that reason there is no administrative act and consequently PAJA is not applicable. The termination of the services of the applicant would therefore arise from the contract. That would then mean that the action of the applicant would fall under labour law. In that event the court that has jurisdiction is the Labour Court. The applicant would then be expected to exhaust all the internal remedies.⁴⁵ Incidentally the applicant had initiated such internal remedies which he subsequently abandoned.

[45] It becomes apposite, in the circumstances of this case, to cite what Ngcobo J said in the same matter:

“[153] One final observation must be made in this case. The applicant approached the High Court because she was advised to do so. The state of the law was uncertain at the time. Her approach to the High Court is therefore understandable. Should she decide to pursue her claim in the right forum, one can only hope that the circumstances that led her to abandon the CCMA process and the length of time it has taken to resolve the important legal question she has raised, will be taken into consideration in considering the reasonableness or otherwise of her delay in approaching the appropriate forum.”

[46] In the light of the authorities cited herein above, in particular, the approach advocated by the Constitutional Court, I am of the view that it is immaterial whether a public servant contends that the public power employed to terminate his services has been exercised mala fide, he must bring his action within the purview of PAJA, in which case within the time frame therein stipulated, or if the termination arises from the contract and not being an administrative act, within labour forums and in particular the Labour Court, again without inordinate delay.

[47] In the result, I am of the view that, even on the second point in limine, the first and the third respondent must still succeed.

[48] With regard to cost, from the evidence presented, the first and third respondents did not prosecute the disciplinary proceedings against the applicant that were scheduled for 3 November 2004. Further, notwithstanding the fact that it was the view of the second respondent, to whom the first and third respondents are accountable, that the termination of the services of the applicant should be withdrawn and that the applicant should be re-instated and that disciplinary action against the applicant should be commenced afresh, the first and third respondents choose not to heed such directive and precipitated this application. In their answering affidavit, the first and third respondents failed to disclose the attitude of the second respondent regarding the reinstatement of the applicant, which is material information. This failure to disclose material information to the Court, should attract the displeasure of this Court. I am of the view that, when taking all the above mentioned facts, this is a matter which warrants that the displeasure of the Court be demonstrated by mulcting the first and third respondents with costs.

[49] I am also of the view that, since section 157(2) of the Labour Relations Act, No 66 OF 1996 still remaining on the statute books, this is one matter where the applicant should not be ordered to pay the costs in this case. This must be seen in the context of the fact that where a statute accord a litigant certain rights, like the right of choice of the forum to prosecute his claim at, those rights can only be taken away by way of a statute, not by way of what is the correct or most preferred interpretation of that statute. Where the litigant wrongly decide to prosecute his action at another forum, which by law he is entitled to approach, he should not be mulcted with costs for that wrong decision.

[50] In the premises I make the following order:

1. That the application is dismissed;

2. The first and the second respondents, jointly and severally, the one paying, the other be absolved, are ordered to pay the costs of this application.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE : 22 NOVEMBER 2007

DATE OF JUDGMENT : 12 MACRH 2008

APPLICANT`S ATT : MR. RAPHELA.

PLAINTIFF`S ADV : MR. TPC TSHIDUMO.

1^ST & 3^RD RESPONDENTS’ ATT : MR. NGCUKAITOBI.

1^ST & 3^RD RESPONDENTS’ ADV : MR. FREUD SC.

With ADV. : MR. S YACOOB.

2^ND RESPONDENTS’ ATT : STATE ATTORNEY (L. PILLAY).

2^ND RESPONDENTS’ ADV : MR. V MALEKA SC,with

With ADV : MS A PATEL.

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