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IN THE NORTH GAUTENG HIGH COURT - PRETORIA

(REPUBLIC OF SOUTH AFRICA)

DATE:15/01/2010

CASE NO: 67218/2009

The Honourable Acting Justice Roelof Du Plessis

In the application of:

SUDAMA GOBINDLAL

and

THE MINISTER OF DEFENCE First Respondent

THE ACTING SECRETARY FOR DEFENCE Second Respondent

THE CHIEF OF THE SANDF Third Respondent

JUDGMENT

BACKGROUND

[1] The applicants in this matter bring an application for relief in the following terms:

"2. The applicant's failure to comply with the requirements with regard to the prescribed time periods as provided for inSection 35 of the General Amendment Act (Act No 62 of 1955) is condoned insofar as it may be necessary;

3. The respondents' decision in terms whereof the applicant was transferred to the Military Health Training Formation as an occupational health and safety representative situated in Thabatshwane, Pretoria from the South African Military Health Services Head Quarters, Durban, and further demoted from his position as Regimental Sergeant Major, as well as the deduction from the applicant's salary of his merit assessment bonus for the year 2008/2009, is set aside and suspended pending the institution and finalisation of an application for the review of the aforesaid decision that is to be filed by the applicant within 30 days from date of this order in the following terms:

3.1 The applicant shall forthwith, pending finalisation of the review proceedings, be detached to 1 Medical Battalion Group, Durban in accordance with the letter of the Commanding Officer, Col DV Perumai of the aforesaid unit alternatively a unit within the Durban vicinity;

3.2 The applicant shall forthwith, pending finalisation of the review proceedings, be entitled to all of his service benefits, merit bonuses and the like whilst employed as such on detached duty in Durban.

4. The respondents are ordered to forthwith effect payment, by not later than two calendar days from date hereof, any and/or all of the applicant's salary and/or other benefits that he would have been entitled to if not for his deployment to Pretoria and the respondents' subsequent deduction of his merit bonus for the year 2008/9."

[2] The grounds for the main relief sought, regarding the respondents' decision to transfer the applicant to Pretoria from Durban are based on the allegation that he was unlawfully transferred, that he was demoted from a position as a Regimental Sergeant Major, and also that his merit assessment bonus for the year 2008/09 was deducted from his salary without any reason. The applicant states that the respondents have made themselves guilty of unfair labour practices by denying him the position for detached service at 1 Medical Battalion Group by Col DV Perumal. That position has been held open for him by Col DV Perumal and is according to the applicant available to him.

[3] The applicant states that during February 2006 he was forcefully transferred to Pretoria and in the same year he was promoted to Regimental Sergeant Major. From February 2007 to May 2008 he went on stress leave as a result of this.

[4] From 14 August 2008 the General Officer Commanding at the South African Military Health Services Durban motivated that he be detached to Durban due to his family circumstances. He also worked in that unit until January 2009. He was then again transferred to Pretoria.

[5] His wife is a Lieutenant, in the SANDF stationed at the South African Medical Health Services in Durban. She suffers from a bone disorder. She has been treated in Durban and cannot drive for long periods. He has two children of 6 and 11 years old.

[6] He states that he did not want to be transferred to Pretoria and gave his family situation as the main reason therefor.

[7] When he travelled to Pretoria, after he had filed submissions to explain his situation to the Department of Defence, he was threatened to be charged for not being at his place of appointment. He received no feedback from his meetings he had had with his superiors in Pretoria during December 2005. He was to arrive for duty on 3 February 2006 at the headquarters of the Sergeant General in Pretoria .failing which he was threatened to be charge with being absent without leave.

[8] Notwithstanding numerous explanations about his family situation and filing grievances, insisting that he had the right to fair labour practices and to fair administrative action, he received no response.

[9] In Pretoria during 2006 he was promoted to Regimental Sergeant Major. Thereafter he was demoted to a Warrant Officer Class 1. From February 2007 until March 2008 he was temporarily disabled as a result of stress, caused by the abovementioned situation.

[10] He returned to his unit on 1 April 2008 and notwithstanding numerous requests and interviews with management, he remained at the unit until July 2008. From August 2008 to December 2008 he was temporarily transferred on detached duty to Durban. He lodged numerous motivated requests by himself and the Officer Commanding in Durban to remain in Durban. These were ignored and he was told to return to Pretoria on January 2009. The legal section of the South African National Defence Union also took his matter up and requested reasons why he should not be considered for extended detached duty until December 2010. This was simply not answered.

[11] His evidence is that his family situation has deteriorated, that his children suffer from separation anxiety and other psychological problems, and that he cannot cope with the stress caused by him being away from his family. Since January 2009 he has been part of the Military Health Training Formation as an Occupational Health and Safety Representative, for which he is not skilled, and in respect of which he has had no training whatsoever. Numerous requests to be redeployed in Durban, in a post that is available for him, and which request was supported by Colonel DV Perumal, fell on deaf ears. On 22 July 2009 Warrant Officer Sebone, who apparently is the person who has been thwarting all attempts of the applicant to be retransferred to Durban, again disapproved the request of Colonel Perumal and insisted that the correct channel of command was not utilised.

[12] Sebone's function is responsible for the career management of all Warrant Officers in the SANDF. The apparent route to have been taken was to have requested permission for detached duty from Brigadier General PJ Oelofse. However, Oelofse had already given a recommendation and a motivation that the applicant had to be detached to Durban.

[13] Although it is not necessary to list all the other requests and steps taken by the applicant to be returned to Durban, it is apparent that the circumstances, his medical situation, and his family problems, have made no impact on those responsible for giving consideration to his position. He complains that the decision to deny him detached duty to be transferred from Durban to Pretoria is reviewable as an administrative decision. The denial of the opportunity for detached duty to 1 Medical Battalion Group, is also alleged to be a reviewable administrative decision. The same, he alleges, is applicable to his demotion from RSM to Warrant Officer 1, the refusal to pay him his merit bonus, and in general the actions of the respondents have been grossly unfair and contrary to the principles of natural justice, and not in accordance with fair administrative processes, according to him.

[14] In his application he seeks interim relief pending the institution and finalisation of review proceedings for the setting aside of the second respondent's decision to deny him to be transferred to Durban.

[15] The opposing affidavit on behalf of the respondents was made by Senior Chief Warrant Officer Sebone of the Department of Defence.

[16] He sets out some of the history before February 2006 and states that the applicant had been based in Pretoria since February 2006. He admits that several representations and requests were made by the applicant to be transferred from Pretoria to Durban and that none of those requests were granted. The first point that was taken by respondents, and it was also strenuously argued, was that the application was not urgent. Clearly, through this approach, the respondents have indicated that they have no real concern for the family circumstances and medical circumstances of the applicant.

This approach is apparent from the opposing affidavit. The fact of the matter is that the case came before me, that 1 heard argument and that ! read the papers. There is no reason why another court should consider the matter afresh.

[17] It is apparent from the opposing affidavit that the deponent, Sebone, refused all representations by applicant for transfer from Pretoria to Durban and he refused all requests in this regard. One of the reasons he had given refusing the request for a permanent transfer from Pretoria to Durban on 24 March 2009, was that a post had to be identified. The applicant has indicated that there was such a post available, as pointed out by himself and as indicated by Colonel Perumal. The respondents attempted to explain that the position of Regimental Sergeant Major was not a promotion but it only defined certain responsibilities. It is denied that the applicant was demoted. In my view, having spent two years in the South African Defence Force, there is a vast difference between the position of Regimental Sergeant Major and a simple Warrant Officer Class 1. The explanation given by the deponent on behalf of the respondents is therefore, in my view, simply not truthful.

[18] The deponent of the respondent utilised the first half of the opposing affidavit to illustrate why the application was not urgent instead of dealing with the merits of the matter. It is repeatedly stated that the applicant had a period of three years to bring the application, that he was stationed in Pretoria from February 2006 and that he had sufficient time to approach the court. The opposing affidavit conveniently ignores all the steps listed by the applicant and taken by him, whereafter, in obvious shear desperation, he approached the court.

[19] The clear and uncontraverted medical and psychological evidence presented by the applicant should have been considered over this period, but apparently the deponent Sebone, simply refused to do so, or he considered the facts presented by the applicant to him from time to time, but did not regard those facts as sufficient to take steps regarding the applicant's position.

[20] The respondents then state that the applicant has no prospects of success in the main application for review and that an interim order should not be granted. The main defence is that the decisions attacked by the applicant are not administrative decisions in terms of the applicable law, and that the decisions attacked are therefore not reviewable and that they cannot be set aside.

[21] Sebone states that the decision to transfer the applicant was not made under and in terms of the empowering legislative mandate, nor was it based on the exercise of a public power or in the performance of a public function. He alleges that the relationship between the applicant and the first respondent is simply governed by an employment contract entered into between the parties and that that employment contract forms part of private law as opposed to administrative law. He states that the decision to transfer the applicant and the decision not to adhere to the applicant's requests, were all made in terms of an employment contract which did not constitute performance of a public power.

[22] He then explains how transfers occur within the SANDF. Transfers are done in a military context in consideration of the operational status and are designed to expose members in various areas to different situations. He states that there is no prior consultation and no right to prior consultation before a decision to transfer is made. Representations afterwards may however be made. Members have therefore no say where they are to be transferred and how they are to transferred. Regarding the position which is open, as indicated by Colonel Perumal, he states that Perumal can only make a recommendation. It is not binding on "the powers that be". He then states that the position referred to by Colonel Perumal was in any event occupied. Sebone also states that the recommendations of the medical personnel and psychiatrists, are simply recommendations which have no binding effect on the respondents.

[23] He states that there is no position or vacancy available and that the applicant's demand is impossible. The bonus was apparently not paid because applicant was not performing. He does not in detail deal with any of the reasons why the various requests and representations were simply not adhered to or even properly considered. Nowhere in his affidavit he states that any of the requests have ever been properly considered, by taking into account all the facts regarding the applicant.

[24] In the replying affidavit the applicant highlights the fact that the responses to his representations and the answering affidavit clearly indicate that no consideration was in fact given to any reasons, objections or representations made by him. He refers to certain plans and guidelines for staffing military components of the transformed Department of Defence. In these, a clear right is created to react to any transfers, and to provide reasons why personnel should not be transferred from one position to another. I find it strange that the respondents did not refer to these documents or even referred me to any internal frameworks, regulations or other documents applicable to the consideration of transfers in the SANDF. As I have stated, the main defence of the respondents was that the application was not urgent, and that the decisions are not reviewable in law. The applicant also referred me to an opinion by legal services of the SANDF. This document is important for purposes of this judgment. In the document it is stated that in the Defence Force the employer is in an authoritive position over the employee and that he must perform his tasks in a subordinate manner. He is therefore obliged to obey the lawful commands, orders and instructions of the employer. However, reference is made to certain interim guidelines pertaining to staffing procedures. Certain guidelines are referred to, such as the member's level of expertise for the post for which he is considered, his state of physical and psychological health, his domestic circumstances and various other aspects which should be considered.

[25] In accordance with the staffing procedure of the SA Army Staffing Instruction 1/2000 dated 18 July 2000, career managers must compile and maintain accurate records of the careers of all members, and the approach of the member to the change of his position must be considered. The fact that a member does not accept any recommendations pertaining to a different post must also be taken into account. The member's domestic circumstances and disruption thereof must be considered. The member, in application of the audi alteram partem principle, must be given the opportunity to inform the decision making body of the implications of the transfer decision on him or her. The applicant says that the respondents have failed to meet with the criteria as set out in the legal opinion. He states that no reasons were given why he was removed from his wife and children, no justification was advanced, and that his position has simply deteriorated. No reasons have also been given why all his requests have been refused, since 2008, to alleviate his position. He states that the respondents are not interested in his career planning, that no reasons are advanced why he should work in Pretoria, and no reasons are given why he should not be transferred back to Durban, except that the respondents have stated that no post is available.

[26] In the replying affidavit he states that he had spoken with Colonel Perumal on 11 November 2009, that the specific post was still available, and that Colonel Perumal requires his services. He states that the channel of command had been followed by him to be transferred and that there simply appears no reason why he should not be transferred.

[27] He states that the respondents have not complied with their own internal rules pertaining to transfer of personnel. In this regard he refers to the opinion above, as well as a document dated 23 January 2002, which is an interim procedure instruction regarding placement of members in vacant posts. I have not been presented with any other updated documentation in this regard and must accept that this is the most recent applicable instruction in this regard.

[28] The reason for this interim procedure was to facilitate the staffing of newly created structures within the SANDF and to put a fair and less complicated process in place. Regarding placement of members, the requirement is that all members must be allowed the opportunity to state their case in terms of the audi alteram partem principle in respect of any placement. The interests of the member should always be considered especially in the cases of military careers in families and the provision of a job opportunity for spouse earning an income and pursuing a career. A grievance process is provided for. This was followed by the applicant with no positive consequences at all.

THE LAW APPLICABLE TO AN EMPLOYMENT CONTRACT IN THE SANDF

[29] The Constitutional Court has recognised, in the matter of South African National Defence Union v Minister of Defence¹, that members of the armed forces are workers as contemplated in section 23 (2) of the Constitution Act 108 of 1996.

[30] It was found that when section 23 (2) speaks of "worker" it should be interpreted to include members of the armed forces even though the relationship they have with the defence force is unusual and not identical to an ordinary employment relationship. The peculiar character of the defence force may well mean that some of the rights conferred upon workers and employers as well as tradeunions and employers organisations by section 23, may justifiably be limited².

[31] In Minister of Defence and Others v. Dunn³ the Supreme Court of Appeal considered an application for review of a decision pertaining to promotion in the South African National Defence Force. The legal basis for the relief sought was the Promotion of Administrative Justice Act, 3 of 2000 (hereinafter referred to as PAJA). Both the court a quo and the supreme Court of Appeal had no doubt that this Act was applicable and that administrative law governed the relationship between the parties.

[32] It is important to note that PAJA does not exclude the South African National Defence Force regarding its applicability.

[33] However, in terms of section 2 of the Labour Relations Act, 66 of 1995, the National Defence Force is excluded from application of that Act. Members of the National Defence Force are also in terms of section 3 (1) (a) excluded from the Basic Conditions of Employment Act, 75 of 1997.

[34] It is therefore clear that the employment relationship between a member of the SANDF and an employee, is a specific extra-ordinary relationship of which the terms and conditions should be determined with reference to terms and conditions made applicable by the employer, and otherwise terms and conditions which may as a matter of law be applicable. In this regard the question arises if PAJA should be regarded as being applicable to such a relationship.

[35] In Chirwa v Transnet Ltd and Others⁴ a Transnet pension fund manager was dismissed. She referred the dispute to the CCMA for conciliation whereafter she approached the High Court with an application for review. The court reinstated her and Transnet appealed to the Supreme Court of Appeal. The central issue was whether the applicant should have sought relief in the forums established under the Labour Relations Act, or in the High Court.

[36] The Supreme Court of Appeal decision was a split decision of three against two. The majority judgments upheld the appeal on the basis that her dismissal did not constitute administrative action subject to review, and in one judgment it was found that the High Court lacked jurisdiction to entertain the matter as the labour court has exclusive jurisdiction. The minority found that the dismissal was indeed an administrative act subject to review.

[37] The Constitutional Court came to the conclusion that the subsequent appeal to that court had to fail because the dismissal did not constitute administrative action.

[38] The Constitutional Court in the judgment of Skweyyia J dealt with this issue as follows:

"[46] The question of jurisdiction arises in this matter because dismissals of public sector employees appear to implicate not only labour rights but also those of administrative justice. This is at least what Ms Chirwa is asserting. The two rights are entrenched in two separate provisions in the Constitution,) each with its own aims and specialised legislation (the LRA and PAJA) that seeks to give effect to its own distinct objectives. This was emphasised in SAPU and Another v National Commissioner of the South African Police Service and Another (SAPU).

[47] The purpose of the administrative justice provisions is to bring about procedural fairness in dealings between the administration and members of the public.

The purpose of labour law as embodied in the LRA is to provide a comprehensive system of dispute resolution mechanisms, forums and remedies that are tailored to deal with all aspects of employment. It was envisaged as a one-stop shop for all labour-related disputes. The LRA provides for matters such as discrimination in the workplace as well as procedural fairness; with the view that even if a labour dispute implicates other rights, a litigant will be able to approach the LRA structures to resolve the disputes.

Ms Chirwa's case is based on an allegation of an unfair dismissal for alleged poor work performance. The LRA specifically legislates the requirements in respect of disciplinary enquiries and provides guidelines in cases of dismissal for poor work performance. She had access to the procedures, institutions and remedies specifically designed to address the alleged procedural unfairness in the process of effecting her dismissal. She was, in my view, not at liberty to relegate the finely-tuned dispute resolution structures created by the LRA. If this is allowed, a dual system of law would fester in cases of dismissal of employees by employers, one applicable in civil courts and the other applicable in the forums and mechanisms established by the LRA.

[66] Ms Chirwa is not afforded an election. She cannot be in a preferential position simply because of her status as a public sector employee. There is no reason why this should be so, as s 23 of the Constitution, which the LRA seeks to regulate and give effect to, serves as the principal guarantee for all employees. All employees (including public service employees, save for the members of the defence force, the intelligence agency and the secret service, academy of intelligence and Comsec), are covered by unfair dismissal provisions and dispute resolution mechanisms under the LRA.) The LRA does not differentiate between the State and its organs as an employer, and any other employer. Thus, it must be concluded that the State and other employers should be treated in similar fashion.

[72] Only acts of an administrative nature are subject to the administrative justice right in s 33 (1) of the Constitution. The focus of the enquiry as to whether conduct constitutes administrative action is not the position which the functionary occupies but rather on the nature of the power being exercised. This court has held in a number of cases that in this enquiry what matters is not so much the functionary as the function; that the question is whether the task itself is administrative or not and that the focus of the enquiry is not on the farm of government to which the relevant functionary belongs but on the nature of the power such functionary is exercising.

[73] My finding that the High Court does not have concurrent jurisdiction with the Labour Court in this matter makes it unnecessary that I should arrive at a firm decision on the question of whether the dismissal of Ms Chirwa by Transnet constitutes administrative action. If, however, I had been called upon to answer that question, I would have come to the same conclusion as Ngcobo J: namely that the conduct of Transnet did not constitute administrative action under s 33 of the Constitution for the reasons that he advances in his judgment."

Ngcobo J said the following in his judgment:

"[102] Consistently with this objective the LRA brings all employees, whether employed in the public sector or private sector under it, except those specifically excluded. The powers given to the Labour Court under s 158 (1) (h) to review the executive or administrative acts of the State as an employer give effect to the intention to bring public sector employees under one comprehensive framework of law governing all employees. So too is the repeal of the legislation such as Public Service Labour Relations Act and the Education Labour Relations Act One of the manifest objects of the LRA is therefore to subject all employees, whether in the public sector or in the private sector, to its provisions, except those who are specifically excluded from its operation.

[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 ion the LRA should not be labelled 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.

I am unable to agree with the view that in dismissing the applicant Transnet did not exercise public power. In my view, what makes the power in question a public power is the fact that it has been vested in a public functionary, who is required to exercise the power in the public interest. When a public official performs a function in relation to his or her duties, the public official exercises public power. I agree with Cameron JA that Transnet is a creature of statute. It is a public entity created by the statute and it operates under statutory authority. As a public authority, its decision to dismiss necessarily involves the exercise of public power and, '(t)hat power is always sourced in statutory provision, whether general or specific, and, behind it, in the Constitution'. Indeed, in Hofmann v South African Airways this court held that 'Transnet is a statutory body, under the control of the State, which has public powers and performs public functions in the public interest'.

[139] However, the fact that the conduct of Transnet in terminating the applicant's employment contract involves the exercise of public power is not decisive of the question whether the exercise of power in question constitutes administrative action. The question whether particular conduct constitutes administrative action must be determined by reference to s 33 of the Constitution. Section 33 of the Constitution confines its operation to 'administrative action', as does PAJA. Therefore to determine whether conduct is subject to review under s 33 and thus under PAJA, the threshold question is whether the conduct under consideration constitutes administrative action. PAJA only comes into the picture once it is determined that the conduct in question constitutes administrative action under s 33. The appropriate starting point is to determine whether the conduct in question constitutes administrative action within the meaning of s 33 of the Constitution. The question therefore is whether the conduct of Transnet in terminating the applicant's contract of employment constitutes administrative action under s 33.

[142] The subject matter of the power involved here is the termination of a contract of employment for poor work performance. The source of the power is the employment contract between the applicant and Transnet. The nature of the power involved here is therefore contractual. The fact that Transnet is a creature of statute does not detract from the fact that in terminating the applicant's contract of employment, it was exercising its contractual power. It does not involve the implementation of legislation which constitutes administrative action. The conduct of Transnet in terminating the employment contract does not in my view constitute administration. It is more concerned with labour and employment relations. The mere fact that Transnet is an organ of State which exercises public power does not transform its conduct in terminating the applicant's employment contract into administrative action. Section 33 is not concerned with every act of administration performed by an organ of State. It follows therefore that the conduct of Transnet did not constitute administrative action under s 33.

[143] Support for the view that the termination of the employment of a public sector employee does not constitute administrative action under s 33 can be found in the structure of our Constitution. The Constitution draws a clear distinction between administrative action one the one hand and employment and labour relations on the other. It recognises that employment and labour relations and administrative action are two different areas of law. It is true they may share some characteristics. Administrative law falls exclusively in the category of public law while labour law has elements of administrative law, procedural law, private law and commercial law.

[148] As pointed out earlier, the line of cases that hold that the power to dismiss amounts to administrative action rely on Zenzile. This case and its progeny must be understood in the light of our history. Historically recourse was had to administrative law in order to protect employees who did not enjoy the protection that private sector employees enjoyed. Since the advent of the new constitutional order all that has changed. Section 23 of the Constitutation guarantees to every employee, including public sector employees, the right to fair labour practices. The LRA, the Employment Equity Act, 1998, and the Basic Conditions of Employment Act, 1997, have codified labour and employment rights. The purpose of the LRA and the Basic Conditions of Employment Act were enacted to give effect to s 23, and now govern the public sector employees, except those who are specifically excluded from its provisions. Labour and employment rights such as the right to a fair hearing, substantive fairness and remedies for non-compliance are now codified in the LRA. it is no longer necessary therefore to treat public sector employees differently and subject them to the protection of administrative law.

[149] In my judgment labour and employment relations are dealt with comprehensively in s 23 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 fail 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."

[39] In the Chirwa decision the Labour Relations Act was applicable to the employee. The employee therefore thought she had a choice between administrative law applied by the High Court or labour law applied by the Labour Court. That approach was wrong. She should have clearly brought her case under the Labour Relations Act and in accordance with labour law principles. Her employment contract was regulated by various statutes providing for the rights of workers and in respect of such employees, the Constitutional Court has found that administrative law was not applicable. That finding in my view encompasses all decisions taken in the course of an employment relationship, including appointment and dismissal of employees.

[40] However, it is clear that the SANDF is excluded from the statutory provisions applied to other employees either in the private or public sector. The question therefore arises what law is applicable to those public service employees who are not covered by the different labour laws applicable.

[41] Meanwhile in Transman (Pty) Ltd v Dick and Another⁵ the Supreme Court of Appeal had occasion to consider some of these issues in an application which was brought by a former employee of the appellant who approached the High Court for an order reviewing and setting aside the findings and recommendations of his employer's disciplinary body, and the employer's decision to terminate his employment. Reliance was placed on either PAJA or the Labour Relations Act.

[42] The Supreme Court of Appeal came to the conclusion that, on the basis of the Chirwa decision, the appellant could not rely on PAJA for purposes of the relief sought.

[43] The Supreme Court of Appeal said the following about the effect of the Chirwa decision on page 31, paragraphs 23-24:

"[23] To the extent that the High Court did not consider Ms Chirwa's claim in the context of PAJA, it erred. The cause of action of what is claimed to be an administrative act now arises from PAJA, and not from the common law as it would have in the past 8 (8).

[24] With the leave of the High Court, Transnet appealed to the Supreme Court of Appeal where it raised the following two issues for consideration by that court:

• Whether Ms Chirwa's dismissal was a matter which fell within the exclusive jurisdiction of the Labour Court in terms ofs 157(1) of the LRA 9 (9)

Whether the dismissal constituted administrative action as defined in PAJA."

[44] It was argued in the Transman decision that the entitlement of the employee to procedural fairness by incorporating principles of natural justice into the agreement was by way of an implied or tacit term. The Supreme Court of Appeal then considered that argument and found that facts had to be proven from which the contended tacit term could be inferred. The Supreme Court of appeal found that the employee had failed to do so and there was therefore no factual basis for importing into the employment agreement a term that he was entitled to a hearing before the board terminated his employment.

[45] It appears from the aforegoing that if the employee had proved that those principles were incorporated or should be incorporated into the employment contract, those principles would have been applied by the Supreme Court of appeal.

[46] In Jackson Gcaba v Minister for Safety and Security and Others⁶ the Constitutional Court had further occasion to consider these issues. In this matter the applicant brought his case on the basis of administrative law provisions and sought a review of the decision not to appoint him to the position he applied for, in terms of administrative law. The application that was considered was an application for leave to appeal from the Supreme Court of Appeal to the Constitutional Court.

In this matter the applicant, after having gone through the internal SAPS procedures, referred his dispute to the bargaining council and then decided not to pursue the process before the bargaining council. He then instituted proceedings in the High Court. It was argued by the respondents that the applicant's claim was a labour matter which had to be adjudicated by way of the mechanisms provided for in the Labour Relations Act. The respondents submitted that a decision by an employer, whether or not to appoint an applicant for a post is no different from a decision to dismiss or change shift arrangements. It is a power which is private in nature and vests in the employer. Even though it is exercised by an organ of state it does not constitute administrative law. The court said the following through Van der Westhuizen J from paragraph 54:

"[54] It is, furthermore, generally accepted that human rights are intrinsically interdependent, indivisible and inseparable. The constitution and legal order is one coherent system for the protection of rights and the resolution of disputes.

A related principle is that legislation must not be interpreted to exclude or unduly limit remedies for the enforcement of constitutional rights.

However, another principle or policy consideration is that the Constitution recognises the need for specificity and specialisation in a modern and complex society under the rule of taw. Therefore, a wide range of rights and the respective areas of law in which they apply are explicitly recognised in the Constitution. Different kinds of relationships between citizens and the state and citizens amongst each other are dealt with in different provisions. The legislature is sometimes specifically mandated to create detailed legislation for a particular area, like equality, just administrative action (PAJA) and labour relations (LRA). Once a set of carefully-crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system. This was emphasised in Chirwa by both Skweyiya J and Ngcobo J. If litigants are at liberty to relegate the finely-tuned dispute resolution structures created by the LRA, a dual system of law could fester in cases of dismissal of employees.

[57] Following from the previous points, forum shopping by litigants is not desirable. Once a litigant has chosen a particular cause of action and system of remedies (for example, the structures provided for by the LRA) she or he should not be allowed to abandon that cause as soon as a negative decision or event is encountered. One may especially not want litigants to 'relegate' the LRA dispensation because they do not 'trust' its structures to do justice as much as the High Count could be trusted. After all, the LRA structures were created for the very purpose of dealing with labour matters, as stated in the relevant parts of the two majority judgments in Chirwa, referred to above".

The Constitutional Court dealt as follows with the question if employment and labour relationship issues constitute administrative action within the meaning of PAJA or not, as follows, from paragraph 64:

"[64] Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognised by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship between the State as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate the relationship between the State as employer and its workers. When a grievance is raised by an employee relating to the conduct of the State as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action.

In this regard the reasoning of Murphy AJ in SAPU is persuasive. The distinction drawn in that decision in relation to tender contracting processes and employment seems correct. For purposes of constitutional interpretation, there are material differences between tender processes and employment. One is that the Constitution relates the employment relationship expressly in section 23, which it does not do for procurement (although section 27 (1) of the Constitution does provide that procurement must be fair, equitable, transparent, competitive and cost effective). Another is that the employment relationship is different from the

contractual relationships which underpin procurement. The court concluded that the employment decision at issue in SAPU was not administrative action. This does not mean that employees have no protection. Employment is not a bargain of equals, but a relationship of demand. Since the 1980s in South Africa, the legislature has realised that leaving the regulation of employment purely within the realm of contract law could foster injustice. Therefore the relationship is regulated carefully through the LRA. Section 23 is an express constitutional recognition of the special status of employment relationships and the need for legal regulation outside of the law of contract.

[66] In Chirwa Ngcobo J found that the decision to dismiss Ms Chirwa did not amount to administrative action. He held that whether an employer is regarded as 'public' or 'private' cannot determine whether its conduct is administrative action or an unfair labour practice. Similarly, the failure to promote and appoint Mr Gcaba appears to be a quintessential labour-related issue, based on the right to fair labour practices, almost as clearly as an unfair dismissal. Its impact is felt mainly by Mr Gcaba and has little or no direct consequence for any other citizens.

[67] This view is consistent with the judgment of Skweyiya J in Chirwa, who did not decide this issue, but indicated a leaning in this direction. It furthermore does not contradict the unanimous judgment of this court in Fredericks, which left the issue open. There was no dispute about whether the decision at the centre of the dispute was administrative action.

[68] Accordingly, the failure to promote and appoint the applicant was not administrative action. If his case proceeded in the High Court, he would have been destined to fail for not making out the case with which he approached this court, namely an application to review what he regarded as administrative action."

[49] It is clear in the current matter that the applicant could not have approached the Labour Court as that court has exclusive jurisdiction over matters that the Labour Relations Act prescribe should be determined by it.

[50] Section 157 (2) of the Labour Relations Act confirms that the Labour Court has concurrent jurisdiction with the High Court in relation to alleged or threatened violations of fundamental rights entrenched in chapter 2 of the Constitution and arising from employment and labour relations. Section 157 does not intend to destroy causes of action or remedies which may exist. Other remedies which may be dealt with by the High Court can still be adjudicated by the High Court. The fact that only the Labour Court can deal with certain matters does not exclude the High Court from dealing with matters on the basis of different remedies⁷.

[51] In particular the Labour Court does not have the jurisdiction or power to deal with the common law or other remedies, that my be applicable in a given situation.

[52] The abovementioned decisions do not answer the question regarding the nature of the legal principles applicable to the special relationship in this instance between the applicant and his employer.

[53] In De Villiers v Minister of Education⁸ the court was also called up to adjudicate the question of jurisdiction and in particular exclusive jurisdiction of the Labour Court, in a matter where the second respondent's decision not to reinstate the applicant in terms of section 14 (2) of the Employment of Educators Act, No 76 of 1998 did not constitute administrative action in terms of PAJA. The court said the following in paragraphs 25 and 26:

"[25] The majority in Chirwa require an examination of the substance of the dispute; in this case it is a dispute based upon an employment relationship and its termination. Our finding can be elucidated, to an extent, by reference to the minority judgment in Chriwa of Langa CJ. The learned Chief Justice says:

The implication is that there is no constitutional reason to prefer adjudication of a claim that may simultaneously constitute both a dismissal and administrative action, under the LRA rather than under PAJA. I should add that the legislature could resolve any potential problems of duplication by conferring sole jurisdiction to deal with any disputes concerning administrative action under PAJA arising out of employment upon the Labour Court. So far the legislature has not chosen this route.

[26] Whereas the Chief Justice considers that rights overlap between the LRA and PAJA and hence both pieces of legislation should apply, the approach we have adopted, and which is congruent with the majority judgment of Chirwa, is that the right to which resort should be made in the present case should be based upon the following considerations:

1. examine the substantive nature of the dispute;

2. if it is a dispute that falls under the LRA, then

3. rely upon the more specific right; in this case the right to fair labour practices as opposed to the more general right of fair administrative action."

[54] The court concluded that, since the applicant in that matter fell under the Labour Relations Act, the Labour Court had exclusive jurisdiction to determine the outcome of the application. It is however of use to refer to the considerations referred to in that judgment.

[55] The applicant's counsel, Mr van den Berg, argued that those three criteria should be applied on the basis that the Labour Relations Act was not applicable in the current matter, that the respondents failed to apply the Department of Defence's own policies, and that the applicant was entitled to rely on PAJA for relief sought.

[56] There is no doubt that the applicant is entitled to have brought this application, and that he had also sought relief on a common law contractual basis. There is also no doubt that the internal rules and regulations applicable to the employment relationship must and should have been followed by all the parties concerned. The only question that remains is if the provisions of PAJA should be applied to the matter, and if not, which legal principles should be applied in giving consideration to the relief sought.

[57] At this junction it is important to point out that the relief sought is interim relief pending an application for review of the respondent's decision to transfer the applicant to the Military Health Training Formation as an occupational health and safety representative situated in Thaba-Tshwane, Pretoria, from Durban. The relief that is sought is therefore temporary in nature pending a review application.

[58] I therefore have to find, on these papers, only that a prima facie case for the relief has been made out, that the applicant will suffer irreparable harm should the relief not be granted, that the balance of convenience favours the applicant, and that the applicant has no alternative remedy.

[59] I therefore do not intend to come to a final conclusion regarding the applicability of PAJA or not to the relationship between the parties. However, in my view, in the light of the aforementioned judgments, and the clear distinctions drawn by the Constitutional Court between labour related issues and administrative law issues, I am of the view that the relevant decision will in all probability not fall under PAJA and not be reviewable in terms of the provisions of PAJA. That does not mean that the relief cannot be granted. The relief the applicant may be able to argue that the relief is sought and may be granted on the basis of common law contractual remedies applicant may even decide to amend the way the relief is formulated in the notice of motion, to accord with a finding that common law contractual principles may be applicable.

[60] It also appears to me that it may be argued, although it was not referred to in so many words and terms in the application itself, that it was an implied term of the agreement, that the constitutional rights enshrined in section 23 of the Constitution were to form an integral part of the contractual relationship between the parties, and together therewith, accepted and recognised fair labour law principles. The content of such principles will have to be defined and I do not intend to make any finding in that regard.

[61] I am however of the prima view that a court may eventually find that the general labour law principles pertaining to procedural and substantive fairness should be incorporated as an implied or tacit term into an agreement, such as the one between the applicant and the SANDF. In my view, on a prima facie basis, the applicant has made out a good enough case for such an argument, and the applicant may, as I have said already, be in a position to expand on its application, or amend its relief before the matter is finally dealt with, in terms of the provisions of rule 53.

[62] It appears from the analysis above that the respondents in any event did not comply with their own internal staffing procedures and simply on that basis, prima facie, it appears that there has been a breach of contract. The respondents have made no case that there was an alternative remedy still available to the applicant.

[63] The analysis of the applicant's circumstances as set out above clearly indicates that, should the relief not be granted at this point in time, the applicant's rights may be irreparably infringed, and in particular the applicant's rights flowing from the employment contract, the right to be treated fairly and dealt with fairly, incluiding the right to be dealt with in accordance with the procedures and principles applicable to the employment contract. Furthermore it is clear that the applicant in is own personal capacity and with reference to his family life, may suffer irreparable harm and damage, which could never be rectified by way of damages or any other action. As a result of this the balance of convenience is clearly in favour of the applicant.

[64] In the light of the aforegoing I have come to the conclusion that the applicant has shown at least a prima facie right for the interim relief sought in the notice of motion.

[65] The applicant has furthermore asked for condonation for the failure to comply with the requirements of section 35 of the General Amendment Act, No 62 of 1955. No proper reason has been raised in opposition to this relief sought and I am therefore of the view that such relief should be granted, especially in the light of the fact that I find that the application is urgent and the matter should be dealt with on an urgent basis. I am of the view that there are sufficient grounds for condonation to be granted.

[66] Consequently I make the following order:

"2. The applicant's failure to comply with the requirements with regard to the prescribed time periods as provided for in section 35 of the General Amendment Act (Act No 62 of 1955) is condoned insofar as it may be necessary.

3. The respondents' decisions in terms whereof the applicant was transferred to the Military Health Training Formation as an occupational health and safety representative situated in Thaba-Tshwane, Pretoria from the South African Military Health Services Head Quarters, Durban, his further demotion from his position as Regimental Sergeant Major, as well as the decision to deduct from the applicant's salary his merit assessment bonus for the year 2008/2009, are suspended pending the institution and finalisation of a new or supplemenetary application for the review or setting aside of the aforesaid decisions that is to be filed by the applicant within 30 days from date of this order, in the following terms:

3.1 The applicant shall forthwith, pending finalisation of the further proceedings, be detached to 1 Medical Battalion Group, Durban in accordance with the letter of the commanding officer, Col DV Perumal of the aforesaid unit alternatively a unit within the Durban vicinity;

3.2 The applicant shall forthwith, pending finalisation of such further application proceedings, be entitled to all of his service benefits, merit bonuses and the like, whilst employed as such on detached duty in Durban.

4. The costs of this application shall be costs in the further application proceedings."

BY ORDER OF COURT:

R Du Plessis AJ

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