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FLYNOTES: LABOUR – Public service – Dismissal – Applicant expecting contract to be extended – New minister investigating irregularities with appointments and giving notice that contract not extended – Terminating contract and employment – Applicant’s direct reliance on section 23 of the Constitution ill-founded – Limited to establishing his right to relief by reference to Labour Relations Act 66 of 1995 – Matter should have come before bargaining council in unfair dismissal dispute – Applicant made no attempt to follow prescribed dispute resolution process under Act – Legality challenge not competent because applicant did not pursue review application – Application dismissed.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Reportable

Case No: J 1615 / 21

 

In the matter between:
LESHABANE, JOSEPH MALEKUTU	Applicant
And
MINISTER OF HUMAN SETTLEMENTS	First Respondent
DIRECTOR GENERAL OF THE DEPARTMENT
OF HUMAN SETTLEMENTS	Second Respondent
DEPARTMENT OF HUMAN SETTLEMENTS	Third Respondent

 

Heard:         30 August 2023

Delivered:    1 December 2023

 

This judgment was handed down electronically by circulation to the parties and legal representatives by email. The date and time for hand-down is deemed to be 1 December 2023

 

Summary:    Application for declaratory relief – applicant bound by case as pleaded – case as pleaded ascertained from notice of motion and founding affidavit – not permitted for applicant to raise new case in argument not pleaded

 

S 77(3) of BCEA – breach of contract case raised by applicant in heads of argument – no such case made out or pleaded in founding affidavit – new case cannot be raised in heads of argument – no such case before Court

 

Subsidiarity – principles considered – applicant’s direct reliance on s 23 of Constitution to assert unfair labour practice not permissible – applicant obliged to found claim on LRA – applicant’s claim of violation of Constitution not competent

 

Dismissal – what constitutes dismissal – principles considered – applicant’s case in this instance clearly one of dismissal by employer

 

Dismissal – applicant relying on unlawful dismissal – principles considered – Labour Court has no jurisdiction to decide unlawful dismissal – relief sought by applicant based on unlawful dismissal not competent

 

Dismissal – principle of legality – applicant relying on principle of legality to challenge dismissal – action of dismissal by State does not constitute administrative action – employee in public service still obliged to follow dispute resolution processes under LRA – basis for relief sought by applicant not competent

 

Dismissal – unfair dismissal – direct approach to Labour Court – applicant obliged to follow dispute resolution processes under LRA – applicant should have referred dispute to bargaining council – not competent to approach Court directly seeking declaratory relief

 

S 158(1)(h) of LRA – requires review application – applicant not seeking to review decision – relief under s 158(1)(h) not competent – section cannot be relied on in absence of review or where dispute resolution process under LRA available

 

Application for declaratory relief – proper case for relief not made out – application dismissed

 

Costs – principles considered – costs award against the applicant justified

 

JUDGMENT

 

SNYMAN, AJ

Introduction

 

[1]             The matter originated as an urgent application brought by the applicant on 23 December 2021. The application came about as a result of the termination of the applicant’s employment by the first respondent, by notice dated 8 December 2021. In the notice of motion, the applicant articulated various prayers for relief. The first prayer was interdictory relief, in terms of which the applicant sought to interdict and restrain the first respondent from terminating the applicant’s fixed term contract of employment with the third respondent, which was to endure until 31 December 2024, on the basis that such termination was unlawful, unreasonable, irrational, unjustifiable and unfair. The second prayer was couched in the form of declaratory relief, seeking an order that the applicant’s fixed term contract be declared to be valid and binding between the parties until 31 December 2024. In terms of the third prayer, the applicant sought relief that the first respondent be ordered to comply with the terms and conditions of the applicant’s fixed term contract of employment. And finally, the fourth prayer was once again interdictory relief sought, being that the first respondent be interdicted and restrained from preventing the applicant from resuming his ordinary duties with effect form 1 January 2022. The application was opposed by the respondents.

 

[2]             The urgent application came before Tlhotlhalemaje J on 30 December 2021, and was argued by the parties virtually before the learned Judge. In a written judgment handed down on 7 January 2022, the learned Judge struck the application from the roll on the basis of a lack of urgency, with no order as to costs. The application then proceeded in the ordinary course, and came before me on 30 August 2023 for determination.

 

[3]             When the matter was argued before me on 30 August 2023, the employment of the applicant had already been terminated by the first respondent and he was no longer in service at the third respondent. As a result, most of the relief sought by the applicant, and in particular the interdictory relief, had become superfluous and moot. In argument, the applicant’s counsel confirmed that only one prayer in the notice of motion remained extant, being the prayer for declaratory relief in terms of which the applicant sought an order that the applicant’s fixed term contract be declared to be valid and binding between the parties until 31 December 2024.

 

[4]             The crux of the case the applicant sought to present before me was further that once it was declared that the applicant’s contract of employment was valid and binding between the parties, then the applicant would seek to enforce clause 16(1)(b) of his contract of employment, which clause compelled the respondents (according to the applicant) to pay out the remainder of his contract until 31 December 2024.

 

[5]             I will now decide this matter by first summarizing the relevant background facts. Fortunately, and as it turned out, most of the background facts were either undisputed or common cause. However, and as these are motion proceedings, insofar as there exists a factual dispute between the parties, I shall resolve such dispute based on the principle as enunciated in Plascon Evans Paints v Van Riebeeck Paints[1]. The background facts set out below are arrived at on the basis set out above. For ease of reference, the first respondent will be referred to in this judgment as ‘the Minister’, and the second and third respondents as ‘the Department’.

 

The relevant facts

 

[6]             The applicant commenced employment with the Department of Public Service and Administration on 1 July 2005 as Chief Director: Special Projects. He held that position until 18 April 2007, when he was appointed as Deputy Director General: Housing, followed promptly by an appointment as Deputy Director General: Intergovernmental Relations and Capacity Building, effective 1 May 2007. Then, on 15 November 2007 the applicant became Deputy Director General: Chief of Operations, followed by various other appointments.

 

[7]             Then, and in 2014, the applicant was transferred to the Department of Human Settlements (the Department). Finally, the applicant was appointed to the position of Deputy Director General: Programme and Project Management Unit (PPMU), with effect from 1 January 2016, on a five-year fixed term employment contract, terminating 31 December 2021. The applicant and the Department concluded a written contract of employment on 29 November 2016,[2] setting out the terms of such appointment, which contract will be referred to in this judgment as the ‘2016 contract’.

 

[8]             The 2016 contract of provided for termination thereof in terms of clause 16. It was recorded that during the currency of the contract, it was terminable by either party on written notice of one month if the employee was monthly paid, which was the case with the applicant. It is undisputed that the applicant discharged his duties under this contract until 2021.

 

[9]             With the 2016 contract coming to an end on 31 December 2021, it was recommended by the Department to the Minister at the time, being the Honourable L N Sisulu (MP), by way of a memorandum dated 31 March 2021, that the appointment (employment) of the applicant be extended for a further three years calculated from 1 January 2022, and thus terminating on 31 December 2024.On 12 April 2021, the Minister then informed the applicant in writing that his contract as Deputy Director General: PPMU would be extended for three years calculated from 1 January 2022.

 

[10]         As a result of this extension, the applicant and the Department then concluded a further de novo contract of employment on 10 June 2021,[3] which contact would only come into operation on 1 January 2022 and would apply to 31 December 2024, when it would expire. This contract will be referred to in this judgment as ‘the 2021 contract’. The 2021 contract also had a termination provision found in clause 16 thereof, however it differed somewhat from the 2016 contract. In the case of the 2021 contract, it is provided that either party shall have the right, during the currency of the contract, to give the other party one months’ written notice of termination of the contract. It was however added that in the event that the Department terminated the contract due to no fault of the employee, the Department shall either transfer the employee to another organ of state for the remainder of the contract period, or the Department shall pay out the remainder of the contract.

 

[11]         On 5 August 2021, the Honourable L N Sisulu (MP) was replaced as Minister of Human Settlements by the Honourable N M Kubayi (MP) (the current Minister). Upon assuming her duties, one of the first attendances by the Minister was to an issue brought to her attention by a whistleblower, to the effect that there were various irregularities in the appointment of three Deputy Director Generals in the Department in the course of 2021. One of these appointments was the appointment of the applicant as Deputy Director General: PPMU under the 2021 contract, whilst the other two appointments related to Neville Chainee (Chainee) and Funameng Matlatsi (Matlatsi), who were also appointed in 2021 on contracts that expired in 2023 and 2025 respectively. In particular, the concern of the Minister was that after a preliminary investigation, she considered the appointments to be per se irregular, that staffing procedures were not followed, and that the salaries were inflated. According to the Minister, it was also improper for the contracts to be extended months before they were due to expire, and there were no Cabinet approvals for such extensions which was required for these kinds of positions.

 

[12]         The Minister proceeded to mandate a legal assessment of these appointments culminating with proper written legal opinion as to whether the appointments were indeed irregular. This investigation then indeed culminated in a comprehensive written opinion penned by Professor T Madima SC on 18 November 2021. In the opinion Professor Madima concluded that the appointments were indeed irregular, needed to be set aside, and the Minister was compelled to take action in this regard to correct the wrong. Professor Madima recommended that the appropriate course of action for the Minister to take was to bring an application to the Labour Court in terms of section 158(1)(h) of the Labour Relations Act (LRA)[4] to set aside those appointments. This opinion was followed by a supplementary opinion by Professor Madima SC on 2 December 2021, which opinion simply expanded on the reasons why the appointments were irregular. It is not necessary to unpack the entire content of these opinions in any kind of detail, considering the approach I have followed in this judgment.

 

[13]         Based on these opinions obtained, the Minister then invited the applicant, Chainee and Matlatsi to a virtual meeting held on 3 December 2021, where they informed that their appointments made earlier in 2021 were irregular. This meeting was followed by formal notice on 8 December 2021 to the applicant, in which the Minister informed the applicant that because of the irregularity of his appointment, the Department had decided not to extend his contract of employment beyond 31 December 2021, and that the position had to be filled following all the prescribed public service process and protocols, in which the applicant was invited to participate. According to the Minister, this notice of 8 December 2021 constituted the written notice of termination of employment of the applicant.

 

[14]         The applicant’s employment was due to terminate on 31 December 2021, in terms of the 2016 contract, as its term expired on 31 December 2021. That would remain the case if his employment was not extended by way of the 2021 contract, which the Minister obviously disavowed. It was common cause that the applicant’s employment with the Department then indeed terminated on 31 December 2021. This led to the current application.

 

The case of the applicant

 

[15]         It is trite that the case the Court is required to decide in the case of motion proceedings is determined by the notice of motion and founding affidavit. In National Council of Societies for the Prevention of Cruelty to Animals v Openshaw[5] it was held:

 

‘It is trite law that the applicant in motion proceedings must make out a proper case in the founding papers. Miller J in Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger, puts the matter thus:

‘In proceedings by way of motion the party seeking relief ought in his founding affidavit to disclose such facts as would, if true, justify the relief sought and which would, at the same time, sufficiently inform the other party of the case he was required to meet’ …’

 

[16]         In Zungu v Premier, Province of Kwazulu-Natal and Another[6] the Court articulated the enquiry to be had in this regard in the following manner:

 

‘Accordingly, the first exercise in any proceedings is to read, as in this case, the allegations in the affidavits, and make the determination. It is not, primarily, the form of relief sought, but rather the necessary averments to demonstrate the ‘cause of action’ that determines the ‘character’ of the dispute, although the form of the relief, if it is consonant with the cause of action, will point in the same direction …’

 

[17]         In terms of his notice of motion in casu, it is clear that the applicant seeks to challenge the termination of his employment by the Department based on a case of in essence unlawfulness and unfairness. The founding affidavit seeks to elaborate on this same approach. In it, the applicant pleads: ‘I am advised that he Department’s present Minister’s decision to terminate my new contract is unlawful, unreasonably, irrational, unjustifiable and unfair in that she was, inter alia, bound by the decision of the previous Minister. In addition, her decision to do so constitutes a breach of the terms and conditions of both my present and new contracts entitling me to hold the Department to the terms and conditions thereto’ (sic).

 

[18]         The founding affidavit however makes it clear, when setting out the facts in support of the case and then articulating the legal principles to be applied to those facts, that the case is not about breach of contract and then seeking relief for such breach under common law. In simple terms, it is about the Minister’s decision to terminate the applicant’s employment being unlawful and unfair.

 

[19]         The applicant further relies on his right to a fair labour practice in terms of section 23 of the Constitution, as well the provisions of section 33 of the Constitution which requires executive or administrative action to be lawful (namely the principle of legality), in support of his case for relief. According to the applicant, his constitutional rights in this regard were infringed because his employment was terminated in contravention of the principle of audi alteram partem, was brought about without a fair hearing, and it constituted unlawful administrative action.

 

[20]         A final complaint by the applicant is that even if it is accepted that his appointment was irregular, the Minister’s decision to simply terminate his employment with the Department amounted to self-help and taking the law into her own hands, in that she was bound to approach the Court to set aside the appointment, and not simply terminate it.

 

Analysis

 

[21]         From the outset, it must be said that the applicant’s case faces considerable difficulties, not on the merits of the case, but on the basis he has chosen to present, plead and bring it. As said in SA Breweries (Pty) Ltd v Louw[7]: ‘… If a litigant pleads a bad case, it must lose, and it cannot be rescued from failure because it is possible to conceive and construct a better case …’. This will now be elaborated on, below.

 

[22]         It appears common cause that the notice of the Minister of 8 December 2021 constitutes the action by the Minister in terms of which the applicant’s employment with the Department was terminated, effective 31 December 2021. Whilst it may be true that this notice terminated employment, it is a little more involved to determine what contract of employment has been terminated by way of this notice.

 

[23]         Firstly, and where it comes to the 2016 contract, it is a contract for a fixed term that expired on 31 December 2021. It is trite that where employment of an employee terminates on the basis that a fixed term contract of employment has reached the end of its term and has thus expired, this termination does not constitute a dismissal as contemplated by the LRA. Instead, it is an automatic termination of employment by operation of law. This is also the common law position under contract. The notice of 8 December 2021 contemplates this very scenario where it comes to the 2016 contract. It is stated that in the notice that the applicant’s employment will not be extended beyond 31 December 2021. This can only contemplate the 2016 contract. It follows that such contract expired on 31 December 2021 by operation of law. In Enforce Security Group v Fikile and Others[8] the Court said:

 

‘It is clear from the wording of s 186(1) above that there are specifically defined instances that bring about the termination of employment which would be regarded as dismissal. This means therefore that an employment contract can be terminated in a number of ways which do not constitute a dismissal as defined in s 186(1) of the LRA. One such instance would be a fixed-term employment contract entered into for a specific period or upon the happening of a particular event. An event that comes to mind would include a conclusion of a project or the cancellation or expiry of a contract between an employer and a third party. Once the event agreed to between an employer and its employee takes place or materialises, there would ordinarily be no dismissal. It has been the position in common law that the expiry of a fixed-term contract of employment does not constitute termination of the contract by any of the parties. It constituted an automatic termination of the contract by operation of law and not a dismissal …’

 

[24]         On the facts, the 2021 contract did not extend the 2016 contract. The 2021 contract is in fact concluded independently from the 2016 contract, as a de novo contract. It is clear that it completely substitutes (replaces) the 2016 contract and is defined to only commence on 1 January 2022. Accordingly, the 2021 contract, as it existed in December 2021 when the notice was given, does not change the reality that the 2016 contract automatically expired on 31 December 2021.

 

[25]         For the simple reason as set out above, any case by the applicant that the termination of the 2016 contract was conduct by the Minister that was unlawful, unreasonable, irrational, unjustifiable and unfair, or in breach of his Constitutional rights, can have no substance. In short, this contract was not terminated by the Minister. It was allowed to expire at the end of its term, as had been agreed between the parties. This is an eventuality allowed by, and fully in line with, the law.

 

[26]         But this leaves the 2021 contract. It is undeniable that the contract had been finally concluded between the applicant and the Department in 2021, and was due to commence on 1 January 2022, when the notice was given on 8 December 2021. It is also true that was it not for the notice of 8 December 2021, the applicant would continue to work in the Department in the position of Deputy Director General: PPMU as from 1 January 2022 and until 31 December 2024, in terms of that contract. The notice of 8 December 2021 specifically refers the ‘contract’ being irregular, which can only mean the 2021 contract. The conduct of the Minister in issuing the notice of 8 December 2021 to the applicant caused this contract not to commence on 1 January 2022 and the applicant not to work in terms thereof. It must follow that the Minister regarded this contract as terminated by way of the notice of 8 December 2021. This appears to have been conceded by the Minister in the answering affidavit in any event.

 

[27]         Section 186(1)(a) of the LRA inter alia defines dismissal as: ’Dismissal means that …. an employer has terminated employment with or without notice’. This has been interpreted to mean that the employer engages in an act which brings the contract of employment to an end.[9] In Ouwehand v Hout Bay Fishing Industries[10] the Court described this as: ‘…some overt act by the employer that is the proximate cause of the termination of employment. …’, whilst in Chemical Energy Paper Printing Wood and Allied Workers Union v Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics[11] the Court said that: ‘… the respondent has taken some initiative to terminate the contract, and that the respondent's action has caused the termination …’. It does not matter what kind of label was attached to the act of termination.[12] The case in Uthukela District Municipality v Khoza and Others[13] is comparable to the case in casu, where the Court dealt with a situation where a manager in the municipality had simply been given written notice by the mayor that his employment contract had been ‘abolished’ following a council resolution, and the Court held as follows in this regard:[14]

 

‘There can be no doubt that it was the applicant that brought the employment contract of the first respondent to an end. If it was not for the council meeting, the resolution adopted and the written notice to the first respondent, all on 6 June 2012, the employment contract would have endured. It simply does not matter whether the council viewed the termination as properly motivated by invalidity or voidness in terms of the Systems Act, as it still remained a dismissal. … In short, where the conduct of an employer brings about the termination of the contract of employment, whatever the motivation for this conduct may be, it has to be considered to be a dismissal of the employee as contemplated by the LRA. The simple question that must be asked is whether, was it not for the conduct of the employer, the employment contract would have endured. If the answer is yes, then there has to be a dismissal. It is important to cast the dismissal net as wide as possible, because it is an imperative in terms of the LRA and Constitution that terminations of employment, as far as possible, be tested against the fundamental principle of fairness.’

 

[28]         Therefore, and in my view, the notice of 8 December 2021 constitutes action by the Minister to terminate the 2021 contract. Was it not for this initiative, decision and conduct of the Minister, the employment of the applicant with the Department would not have terminated, as he would have continued to work under the 2021 contract. There can be no doubt that the applicant was dismissed, as contemplated by Section 186(1)(a) of the LRA, by virtue of the termination of the 2021 contract. It is legally competent to terminate a contract of employment before it even starts.[15]

 

[29]         This case therefore hinges on whether the decision and action by the Minister to terminate the 2021 contract and thereby finally terminating the employment by the applicant, would be unlawful, unreasonable, irrational, unjustifiable and unfair, or in breach of the applicant’s Constitutional rights, as being the case as pleaded by the applicant.

 

[30]         I will firstly deal with the applicant’s reliance on section 23 of the Constitution. This case must fail for the simple reason that it flouts the principle of subsidiarity, since the concept of the prohibition of unfair labour practices is regulated by the LRA, pursuant to this Constitutional provision. In South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another[16] the Court held:

 

‘Broadly, the principle of subsidiarity is the judicial theory whereby the adjudication of substantive issues is determined with reference to more particular, rather than more general, constitutional norms. The principle is based on the understanding that, although the Constitution enjoys superiority over other legal sources, its existence does not threaten or displace ordinary legal principles and its superiority cannot oust legislative provisions enacted to give life and content to rights introduced by the Constitution. In simple terms, the principle can be summarised thus:

'Once legislation to fulfil a constitutional right exists, the Constitution's embodiment of that right is no longer the prime mechanism for its enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.' Ultimately, the effect of the principle is that it operates to ensure that disputes are determined using the specific, often more comprehensive, legislation enacted to give effect to a constitutional right, preventing them from being determined by invoking the Constitution and relying on the right directly, to the exclusion of that legislation.’

 

[31]         In My Vote Counts NPC v Speaker of the National Assembly and Others[17] the Court described the principles behind the doctrine of subsidiarity in the following manner:

 

'First, allowing a litigant to rely directly on a fundamental right contained in the Constitution, rather than on legislation enacted in terms of the Constitution to give effect to that right, would defeat the purpose of the Constitution in requiring the right to be given effect by means of national legislation. Second, comity between the arms of government enjoins courts to respect the efforts of other arms of government in fulfilling constitutional rights. Third, allowing reliance directly on constitutional rights, in defiance of their statutory embodiment, would encourage the development of two parallel systems of law …’

 

[32]         There can be no doubt that the LRA was intended to constitute the comprehensive legislation which was specifically designed to give effect to the protections afforded against unfair labour practices as enshrined in section 23(1) of the Constitution, or in other words, it is the LRA which gives effect to this fundamental right.[18] The doctrine of subsidiarity must therefore find application, and it would thus not be permitted for the applicant to seek to establish an unfair labour practice by way of a direct reliance on the Constitution. Such a situation was pertinently dealt with by the Labour Court in Kapari and Others v Office of the Chief Justice and Another.[19] In that case, the applicants relied on section 23 of the Constitution in support of declaratory relief sought to the effect that the respondents committed an unfair labour practice by advertising their positions, and the Court had the following to say in this regard:[20]

 

‘To disregard the principle of subsidiarity and grant access to this (and other superior courts) on the basis of a direct application of the constitutional right to fair labour practices raises significant issues of principle. Halton Cheadle, who was instrumental in drafting both the LRA and the Constitution, observes that a right to fair labour practices is ‘an odd right to include in a Bill of Rights’ and that its insertion into the interim Constitution was part of a package of provisions to secure the support of the public service for the new constitutional dispensation, and in particular, the restructuring and transformation of the public sector (Davis, Cheadle & Haysom Fundamental Rights in the Constitution: Commentary and Cases at 212). Should the constitutional right to fair labour practices be held to extend beyond the traditional triad (ie to test the validity of legislation that gives effect to the right, to interpret that legislation and to develop the common law), and should it become the basis for the development of new, substantive rights, there is a clear danger that the finely balanced agreement that the LRA represents may be unraveled by well-meaning but enthusiastic judges. This is especially so where persons covered by the legislation concerned seek to develop a definition of unfair labour practice beyond that which already exists. Not least, there is the prospect of a ‘two-stream’ development of labour law, an issue that the LRA sought to eliminate and address by establishing a specialist labour court.

 

In short, it seems to me that to seek relief based on the direct application of s 23(1) of the Constitution is not an option open to the applicants. Should the applicants contend that the provisions of the LRA fail adequately to give expression to their constitutional right to fair labour practices, their remedy is to challenge the constitutionality of that Act.’

 

I am in full agreement with these sentiments expressed.

 

[33]         In National Education Health and Allied Workers Union and Others v University of SA and Another[21] the Labour Court followed the same approach, where the Court said:

 

‘… it is well accepted that direct reliance on the Constitution of the Republic of SA 1996 (the Constitution) is impermissible in the light of the subsidiarity principle as correctly submitted by counsel for the respondents. The subsidiarity principle dictates that, ‘where legislation has been enacted to give effect to a constitutional right, a litigant must either rely upon that legislation or challenge its constitutionality. It cannot bypass legislation and rely directly upon the right’, unless the ‘factual situation is complex and the legal position uncertain’. In the present case, the converse is true as the facts are crisp and predicable.

 

The applicants’ direct reliance on the Constitution rather than on the provisions of the LRA pertaining to unfair labour practice and/or unfair dismissal undermined the principle of subsidiarity …’

 

[34]         It must follow that the applicant’s direct reliance in casu on section 23 of the Constitution is ill-founded and simply not competent. The principle of subsidiarity stands squarely in the way of this part of his case. The applicant is therefore limited to establishing his right to relief by reference to the LRA. Where he asserts, as he does, that his termination of employment is an unfair labour practice under the Constitution, he is obliged to pursue that case under the LRA. There is no reason why the applicant could not get all the help he needed pursuant to what is given to him by the LRA. Considering this case concerns the public service, all he needed to do was refer an unfair dismissal dispute to the applicable bargaining council and assert that there was no proper cause for the Minister to terminate his contract of employment (thus dismissing him), that such termination violated his right to a hearing prior to termination, and was unfair. If successful in that case at the bargaining council, the primary relief would be fully retrospective reinstatement for the contract period,[22] which constitutes full redress for any violation of the applicant’s rights. There was absolutely no need for the applicant to have approached this Court directly by way of an urgent application relying directly on section 23 of the Constitution.

 

[35]         But it is even worse than that. Not only was there no need for the applicant to have approached this Court as he did, but the applicant was actually compelled not to do so. The applicant made no attempt to follow the prescribed dispute resolution process under the LRA where it comes to disputes relating to termination of employment, as raised by him in casu. This process, as touched above, required the applicant to refer his dispute to the applicable bargaining council for conciliation, and if conciliation failed, then to arbitration.[23] The LRA does not allow a direct approach to this Court for such disputes. In Chirwa v Transnet Ltd and Others[24] the Court said:

 

‘It is my view that the existence of a purpose-built employment framework in the form of the LRA and associated legislation infers that labour processes and forums should take precedence over non-purpose-built processes and forums in situations involving employment related matters. At the least, litigation in terms of the LRA should be seen as the more appropriate route to pursue. Where an alternative cause of action can be sustained in matters arising out of an employment relationship, in which the employee alleges unfair dismissal or an unfair labour practice by the employer, it is in the first instance through the mechanisms established by the LRA that the employee should pursue her or his claims …’

 

[36]         Following on, and in Gcaba v Minister for Safety and Security and Others[25], it was held:

 

‘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 emphasized 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 …’

 

[37]         The manner in which the applicant chose to approach this Court is quite comparable to the conduct of the employee party in Member of the Executive Council for Education, North West Provincial Government v Gradwell[26], where the Court had the following to say:

 

‘Disputes concerning alleged unfair labour practices must be referred to the CCMA or a bargaining council for conciliation and arbitration in accordance with the mandatory provisions of s 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of s 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. …’

 

[38]         So therefore, and insofar as it can be said that the applicant sought to assets his rights under the LRA, especially considering he pleaded ‘unfair’ conduct, he was compelled to have pursued his claim that he was unfairly dealt with and had his employment unfairly terminated by the Minister, by way of a referral to the bargaining council, and it is not competent to approach this Court directly, absent truly exceptional circumstances, which does not exist in this case.[27] As such, and by virtue of his failure to follow what is the described dispute resolution processes under the LRA, the applicant simply has no right to the relief sought in his notice of motion in this Court at this juncture.

 

[39]         This brings me to the applicant’s pleaded case that his termination of employment was unlawful. In this context, the applicant’s case faces a jurisdictional obstacle. It is settled that this Court has no jurisdiction to decide whether or not the decision of employer to terminate the employment of an employee was unlawful.[28] This, in my view, is apparent from the following dictum in Steenkamp and Others v Edcon Ltd[29]:

 

‘I think that the rationale for the policy decision to exclude unlawful or invalid dismissals under the LRA was that through the LRA the legislature sought to create a dispensation that would be fair to both employers and employees, having regard to all the circumstances, including the power imbalance between them. In this regard a declaration of invalidity is based on a 'winner takes all' approach. The fairness which forms the foundation of the LRA has sufficient flexibility built into it to enable a court or arbitrator to do justice between employer and employee. …’

 

And as succinctly said in Shezi v SA Police Service and Others[30], referring specifically to the dicta in Steenkamp supra:

 

‘The effect of this judgment is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness. …’

 

[40]         In short, the LRA has a unique scheme where it comes to resolving disputes that arise in the scope of the employment environment, and this even includes where the State is the employer.[31] The LRA creates a right to a fair dismissal and a fair labour practice, and then provides for a prescribed dispute-resolution process to give effect to such right.  At the heart of this dispute-resolution process lies the notion of fairness as between both employer and employee, which notion is incompatible with concepts such as unlawfulness or irrationality or illegality or invalidity.[32] At a level of policy, this Court should always strive to give primacy to this prescribed dispute resolution processes of the LRA and the notions underlying it.

 

[41]         Accordingly, the applicant’s pleaded case of his dismissal being unlawful, for whatever underlying cause, would resort outside the purview of the jurisdiction of this Court to decide. It follows that the applicant cannot obtain relief on this basis in his current application before this Court.

 

[42]         This only leaves the applicant’s reliance on the principle of legality, as contemplated by section 33 of the Constitution. The difficulty the applicant however faces where it comes his claim on this basis is that where he seeks to challenge the decision of the Minister to terminate his employment contract on the basis of the principle of legality as contemplated by section 33 of the Constitution, then this has to be done, where the Labour Corut is approached, either by way of a review application under section 158(1)(h) of the LRA,[33] or a review application under PAJA[34]. The applicant has brought no such review application, and it is simply not competent to seek this kind of relief by way ordinary motion proceedings in which declaratory relief is sought.

 

[43]         But in any event, and even though what happened in this case would be considered a decision taken or act performed by the State in its capacity as employer, it does not mean that it is competent for the applicant to invoke section 158(1)(h), in whatever form of legal process. As said by Ngcobo J in Chirwa supra:[35]

 

‘… It could not have been the intention of the legislature to allow an employee to raise what is essentially a labour dispute under the LRA as a constitutional issue under the provisions of s 157(2). To hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute-resolution provisions of the LRA. This would inevitably give rise to forum shopping simply because it is convenient to do so or as the applicant alleges, convenient in this case 'for practical considerations'. What is in essence a labour dispute as envisaged in 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 …’

 

[44]         The fact that the State may be the employer makes no difference. Employees of the State are to be treated no differently and have no additional rights or benefits, as opposed to their counterparts in the private sector.[36] And furthermore, it has been specifically held that the decision by the State to terminate the employment of an employee does not constitute administrative action as contemplated by PAJA or section 33 of the Constitution.[37] In Public Servants Association of SA on behalf of De Bruyn v Minister of Safety and Security and Another[38] this was aptly described as follows:

 

‘The supposition that public servants had an extra string to their bow in the form of judicial review of administrative action, ie acts and omissions by the state vis-à-vis public servants, evaporated when the Constitutional Court in Chirwa v Transnet Ltd & others, held that the dismissal of a public servant was not “an administrative act” as defined in PAJA and therefore not capable of judicial review in terms of that Act. Any uncertainty regarding the interpretation of the Chirwa judgment was removed in the subsequent decision in Gcaba v Minister for Safety & Security & others. The result is that a public servant is confined to the other remedies available to him or her.’

 

[45]         In Zungu v Premier of the Province of KwaZulu-Natal and Others[39], the Court was faced with a situation where it was alleged that a decision by the State not to appoint the applicant party on a permanent basis resorted under the definition of what would be a dismissal as contemplated by section 186(1)(b) of the LRA. That applicant, instead of following the dispute resolution processes under the LRA, instead decided to approach the Labour Court directly by way of a legality review. The Court held as follows with regard to this approach:[40]

 

‘The Labour Appeal Court was correct in upholding the Labour Court’s decision that it did not have jurisdiction in the matter. This is because the claim by the applicant relating to the Premier’s decision not to appoint her, and the contention that this was unlawful, falls squarely within the definition of dismissal in s 186(1)(b) of the LRA. The dispute should have been referred to conciliation and ultimately to arbitration under s 191 of the LRA. Therefore, the applicant cannot bypass the dispute-resolution process envisioned in the LRA. The applicant was obliged to follow the dispute-resolution process in chapter VIII of the LRA but did not do so.’

 

[46]         Therefore, the infringement of the legality principle as basis upon which the applicant seeks relief collapses. His legality challenge is not competent, because he did not pursue the requisite process needed for such a challenge, being a review application. Further, the act / decision of the Minister to terminate the employment of the applicant does not constitute administrative action as contemplated by PAJA and section 33 of the Constitution. And finally, insofar as this Court may be empowered to consider a legality challenge by an employee of the State such as the applicant in casu, such entitlement is always subject to such an employee being required, if not obliged, to instead utilize the prescribed dispute resolution processes under the LRA, like any other employee.

 

[47]         The applicant also pleaded that the Minister is bound by the decision of her predecessor to extend his employment to 31 December 2024, and therefore, when the Minister decided not to extend his employment, the Minister resorted to impermissible self-help. The problem with this case is once again that it is founded on the notion that the decision by the Minister to terminate the contract of employment of the applicant is administrative action, when, as discussed above, it is not the case. All the Minister chose to do, in her capacity as functionary responsible for the Department, is to bring about the termination of employment of the applicant. In this context, it does not matter what her predecessor decided. It also does not matter if the decision of the Minister in bringing about this termination of employment is right or wrong or unfair or otherwise unlawful, as this decision in itself would be open to challenge under the variety of legal remedies available to the applicant, but most suitably, his right to subject that decision to being tested against the tenets of fairness under the LRA. As touched on above, if it was found that the Minister had no cause to terminate his employment because the decision of her predecessor actually prohibited her from doing so, then his termination of employment would be substantively unfair, and as primary remedy, he would be reinstated.[41]

 

[48]         The point can perhaps be best illustrated by example. Assuming the Minister, after taking up her office, decided that, after considering the senior staff complement in the Department, she no longer needed the applicant’s services, and then sent him a notice that effectively terminated his employment. Surely, and that context, the decision taken by her predecessor which only was that the applicant’s employment be extended to 31 December 2024 in terms of a new contract of employment, does not stand in the way of such a decision, nor does the fact that such a decision was taken make it to be some kind of self-help. What is then open to challenge is whether the decision to terminate, as its own decision, was justified and fair, and if not, it would be set aside by way of a finding of unfair dismissal and reinstatement. In simple terms, it is not necessary to look into the decision taken by the Honourable Minister Sisulu to extend employment of the applicant until 31 December 2024, in order to decide whether the decision by the current Minister is sustainable, lawful, reasonable, regular or fair, or whatever one may wish to call it, because under the 2021 contract as it stood, the Minister always had the right to terminate that contract on written notice, which is what happened.[42] This right to terminate exists independently from any earlier decision, as it is specifically provided for in the 2021 contract.

 

[49]         A final consideration remains. In his heads of argument, the applicant now seeks to rely on a case of breach of contract as contemplated by section 77(3) of the BCEA, coupled with a claim for payment under clause 16(1)(b) of the 2021 contract. That case was never pleaded in the notice of motion. The applicant never asked for a determination that the termination of his employment constituted breach of contract. In the founding affidavit, there is singular cursory reference to the termination of his employment being a breach of contract. But that is wholly insufficient where it comes to pleading a proper case, because the applicant has not set out in his founding affidavit, in any manner whatsoever, what provisions of his employment contract have been breached[43], how these provisions have been breached, and what contractual relief the applicant seeks pursuant to such breach[44]. In simple terms, the applicant has not pleaded a proper case of breach of contract.[45] What was required was aptly described in Shezi supra[46] as follows:

 

‘To the extent that counsel submitted (rather faintly) that the applicant was seeking to enforce terms of her contract of employment (and that the court thus had jurisdiction in terms of s 77(3) of the BCEA), this court does indeed have jurisdiction in terms of s 77(3) of the BCEA to determine the lawfulness of a dismissal, in the sense that it may determine the existence of any breach of contract by the employer and grant a contractual remedy (which may include specific performance). But an applicant invoking s 77(3) must necessarily plead a case in contract. The applicant’s pleaded case is not one that invokes any term of her employment contract, or that alleges a breach of contract on the part of her employer. Ordinarily, pleadings in a claim of this nature would assert the term of the contract relied upon, the alleged breach of that term by the employer, record an election to enforce the contract by way of specific performance, and seek consequential relief. This is not the case made by the applicant …’

 

[50]         Where does this failure leave the applicant? In my view, pretty much snookered. In Betlane v Shelly Court CC[47] the Court said: ‘It is trite that one ought to stand or fall by one's notice of motion and the averments made in one's founding affidavit …’. In Van Der Merwe and Another v Taylor NO and Others[48] it was similarly held that: ‘… The applicants must stand or fall by the factual averments in their affidavits which are intended to support the cause of action on which the relief sought is based …’. And as to the introduction of what may be described as a ‘new’ case, the Court in Brayton Carlswald (Pty) Ltd and Another v Brews[49] made the following clear:

 

‘In my view, there are two insurmountable hurdles in the 'new' version being accepted. First, the general rule in motion proceedings is that an applicant must stand or fall by the averments made out in its founding affidavit …’

 

[51]         Accordingly, it is not permissible for the applicant to introduce and then seek to make out a new case founded on breach of contract with its associated relief in his heads of argument. The applicant is bound by his case as pleaded and set out in the notice of motion and founding affidavit. Heads of argument cannot serve to raise a new case.[50] The breach of contract claim articulated in the applicant’s heads of argument is thus not open for consideration, and I therefore decline to entertain the same.

 

[52]         Considering all of the above, it is simply not necessary to decide the case whether it was justified for the Minister to cancel the 2021 contract on the basis that it was unfair, irregular and / or unlawful. This is not a case that should be decided in this Court as a Court of first instance. It is a case that should have come before the bargaining council in an unfair dismissal dispute. It must be remembered that the current application is not one brought by the Minister to set aside the 2021 contract on the basis that it is unlawful or irregular, as this could only be done by way of a review application under section 158(1)(h) of the LRA. I therefore also need not consider the substance of any case that the 2021 contract itself was unlawfully and / or irregularly concluded.  

 

Conclusion

 

[53]         Based on all that has been discussed above, I conclude that the applicant has failed to make out a case for the relief he seeks in his notice of motion. In sum, the applicant was clearly dismissed, and thus it was not appropriate for the applicant to approach this Court directly seeking such relief, instead of pursuing an unfair dismissal dispute to the requisite bargaining council in terms of Chapter VIII of the LRA. The applicant could also not rely directly on the Constitution, by virtue of the application of the principle of subsidiarity. Insofar as the applicant sought to challenge his dismissal on the basis of it being unlawful, this Court would have no jurisdiction to entertain the same. Finally, the applicant could not pursue a legality challenge on the basis that he did, which legality challenge, in any event, was not competent because the decision to dismiss him was not administrative action and he remained obliged, even as an employee of the State, to pursue the dispute by way of the prescribed dispute resolution processes under the LRA. The application thus falls to be dismissed.

 

Costs

 

[54]         The respondents have asked for an award of costs, in the event that I decide to dismiss the application. In terms of section 162(1) of the LRA, I have a wide discretion where it comes to the issue of costs. The Constitutional Court has provided some guidance as to how this discretion is to be exercised. In Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[51] that Court said:

 

‘In the labour context, the judicial exercise of a court’s discretion to award costs requires, at the very least, that the court must do two things. First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered. Second, it must apply its mind to the dictates of the fairness standard in s 162, and the constitutional and statutory imperatives that underpin it …’

 

[55]         It is however clear from the above that it is not true that costs can never be awarded in employment law disputes before this Court. What is required is a proper consideration of the dictates of fairness to both parties, followed by an exposition of reasoning why, despite the general principle in employment law disputes that costs do not follow the result, it was nonetheless decided to award costs.[52] As held in Booi v Amathole District Municipality and Others[53]:

 

‘However, this is a labour matter and this court’s jurisprudence is settled: the ordinary rule that costs follow the result does not apply in labour matters. Rather, what emerges from the provisions of the LRA and the jurisprudence is that courts, when awarding costs in labour disputes, must consider what fairness demands and err on the side of not discouraging parties from approaching the courts for the peaceful resolution of labour disputes. ^[54] Further, if costs are to be awarded in labour matters, there must be reasons that justify a court’s decision to depart from the position that a losing party should not be mulcted in costs in labour disputes…’

 

[56]         In my view, the case in casu is unfortunately one which I believe justifies a departure from the ordinary principle that costs do not follow the result. In Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others[54]:

 

‘Whether a case is hopeless has two aspects. It is hopeless if it is advanced on a basis that is legally untenable. It is also hopeless if it is advanced in the absence of any credible evidence to support it. These are categories that have long been recognised in our law and practice. A case is legally hopeless if it could be the subject of a successful exception. It is factually hopeless if the evidence available and potentially available after discovery and other steps directed at procuring evidence will not sustain the cause of action on which the claim is based. …’

 

[57]         The applicant’s case in casu ticks all the boxes of hopelessness in terms of the dictum in Pioneer Foods supra. After the applicant’s’ case was struck from the roll for the want of urgency in the judgment of Tlhotlhalemaje J of 7 January 2022, especially considering some of the comments made by the learned Judge in that judgment, the applicant should never have pursued it further. This is especially so, considering the applicant was a senior employee and legally represented throughout. Had the applicant given proper consideration to what the case was really all about, the applicant would have appreciated that the simple solution was to refer an unfair dismissal dispute to the bargaining council, which at that point was still well in time. There also exists the plethora of authorities which make it clear that a direct approach to this Court to challenge an unfair dismissal is not competent, and the dispute resolution processes under the LRA must be used. There are equally a number of authorities to indicate that this Court has no jurisdiction to decide an unlawful dismissal. And finally in this regard, direct reliance on the Constitution was never going to fly. Yet the applicant doggedly insisted on pursuing this application. Added to all the above, the applicant then seeks to introduce a new case in his heads of argument.[55]  All these facts justify a costs award against the applicant. I fully align myself with the following dictum in Mokoena v Merafong Municipality and Others[56]:

 

‘In casu, the applicant brought a meritless application to this court and fairness dictates that the respondents cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in before approaching this court on an urgent basis. This is more so where the costs incurred by the respondents are paid from taxpayers’ money and I can see no reason why the taxpayers should be burdened with the costs in this application …’

 

[58]         In bringing the application, the applicant took up the valuable time and already stretched resources of this Court. In doing so, the applicant compelled the respondents, which is a public institution funded out of the taxpayers virtually empty pocket, to defend the case using these already limited and stretched public funds, which is not acceptable.[57] What in reality happened in this instance as abuse of process.[58] This Court has consistently said that this kind of unfounded litigation is deserving of costs orders.[59] The applicant must be told, in no uncertain terms, hopefully also serving as an example to others, that exercising his right of access to the Courts must be done in a responsible manner and always in compliance with the rules and processes of the Court.[60]

 

[59]         For all the reasons as set out above, I exercise my discretion by deciding that a costs award against the applicant is justified, and the applicant should be ordered to pay the respondents’ costs.

 

[60]         For all the reasons set out above, I make the following order:

 

Order

 

1.              The applicant’s application is dismissed.

 

2.              The applicant is ordered to pay the respondents’ costs.

 

S Snyman

Acting Judge of the Labour Court of South Africa

 

Appearances:
For the Applicant:	Advocate H Mutenga
Instructed by:	C J Hlabangwane Attorneys
For the Respondents:	Professor T Madima SC together with Advocate R Matsala
Instructed by:	The State Attorney Pretoria

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